"Supreme Court term gets off to fast start; The justices are set to hear a number of big cases, and their docket may also include any election disputes": Warren Richey will have this article in Friday's issue of The Christian Science Monitor.

Good news regarding this web log's "20 questions for the appellate judge" feature: I am very pleased to report that there will be an October 2004 installment after all. The interviewee is one of the most recently confirmed judges serving on a U.S. Court of Appeals, and the installment will feature a guest interviewer who somehow managed to ask twenty-three separate questions. I will post the interview online at midnight on Monday, October 4, 2004.

"Justice defends position on ruling; Davis says politics not involved in writing decision on sex offender": The Charleston (W.Va.) Daily Mail today contains an article that begins, "State Supreme Court Justice Robin Davis says her name and the court's reputation have been dragged through the mud during campaign season debate about a controversial decision that released a convicted sex offender."

If I am reading the article correctly, apparently in the West Virginia Supreme Court of Appeals it is not unusual for a dissenting Justice to be assigned to write the majority opinion in addition to his or her dissent. If that is so, it strikes me as quite an unusual manner of proceeding.

"Lawyers warn of NZ court backlog": Friday's edition of The New Zealand Herald contains an article that begins, "New Zealand lawyers are bracing themselves for an enormous court backlog with the departure of three district court judges to Pitcairn Island this week. Auckland judges Charles Blackie, Russell Johnson and Jane Lovell-Smith are working as supreme court judges in the island's sex abuse trial. They are not expected to return until early December."

"Justice in the Balance: Catholic Lawyers and Scholars Speak out on the Threat to Catholic Values Posed by a Kerry Presidency": A coalition of Catholic lawyers and legal scholars has issued this statement today.

"Man files 2nd appeal in loss of license; Judge erred in ruling, Lebanon driver says": The Patriot-News of Harrisburg, Pennsylvania today contains an article that begins, "A Lebanon man whose driver's license was taken away by the state after he admitted drinking six to 12 beers a night is taking his fight to a higher court."

View online the order denying rehearing en banc that the U.S. Court of Appeals for the Eleventh Circuit entered in the Alabama sex toys case: I have posted a copy of the order online here. The opinion that a divided three-judge panel issued in July 2004 holding that Alabama's law prohibiting the distribution of sex toys is not unconstitutional can be accessed at this link.

The Internet declares bankruptcy? I had to do a double-take when I first saw the headlines of this report from Reuters and this report from The Associated Press. What actually seems to be the case is that Intermet has declared bamkruptcy. As always, readers are invited to make up their own jokes about the Internet declaring moral bankruptcy.

"Lead lawyer for Schiavo's parents quits; After more than three years representing them, Pat Anderson says, 'I've done my part shoving that rock up the hill'":This article appears today in The St. Petersburg Times.

"Condesa Launches Blawg Republic": You can access the press release at this link. To view this new blawg aggregator, simply click here.

Speaking of aggregators, readers are invited to join me in asking Google News to add "How Appealing" as one of its sources. Several other blogs have recently been added as Google News sources, and instead of protesting those decisions the least that fans of "How Appealing" can do is request equivalent treatment.

To send an email suggesting that "How Appealing" be added as a Google News source, simply write to source-suggestions@google.com. Thanks so very much in advance to those readers who are able to take a moment to send along a request via email to the good folks at Google News.

"The Supreme Court's Excessive Secrecy: Why It Isn't Merited." FindLaw columnist Edward Lazarus, who has something of a personal stake in how this issue is resolved, has this essay today. And "The Volokh Conspiracy" has posted online here the text of a letter that certain U.S. Senators have issued concerning this matter.

The American Bar Association yesterday gave President Bush's choice for a seat on the U.S. Court of Appeals for the District of Columbia the lowest possible passing grade for judicial nominees, and sources said a Republican Senate chairman was expected to schedule a hearing next week on his nomination.

Thomas B. Griffith, who failed to obtain a law license in Utah or keep a current license in the District during parts of the past six years, received a slight majority from his peers after an unusually long, three-month investigation. Under the ABA's system, that means at least eight of the 15 members on the review panel rated him "qualified" for a seat on the court, and at least six rated him "not qualified."

"Ted Olson and Walter Dellinger appeared on C-SPAN's Washington Journal program this morning": So emails a reader, who goes on to note that they spoke about the U.S. Supreme Court's upcoming Term, prospective Supreme Court nominees, the judicial confirmation process, and their experiences arguing cases before the Court. You can view the segment online by clicking here. It runs slightly longer than 47 minutes.

In a perfect world, I would post news of all U.S. Supreme Court preview sessions before they occur: This afternoon at the Stanford Law School, the Stanford Law American Constitution Society held an OT '04 Supreme Court Preview featuring Pam Karlan, Tom Goldstein and Alan Morrison.

While it's too late to attend that event, tomorrow evening in Philadelphia the National Constitution Center will host a Supreme Court Preview that's open to the public, free of charge, and yet to occur. According to the description posted online here, "Kathleen Sullivan of Stanford Law School and John Yoo of Berkeley Law School [will] take a look at the important cases coming up in the next session of the Supreme Court. Award-winning Supreme Court reporter Tony Mauro will moderate." I am reliably advised that attendees need not worry about being bonked on the head by falling wooden beams. It won't hurt a bit. On a more serious note, I would even attend this event myself if I hadn't just spent part of my thirteenth wedding anniversary away from home visiting with the Eighth Circuit's judges.

A reader report on today's deadbeat-dad-related appellate news: While I was away from the computer today, a helpful reader emailed:

The Ohio Supreme Court today issued its decision in State v. Talty, a closely-watched case in which the trial court ordered the deadbeat-dad defendant (whose mug shot features one of the world's last great mullets) to refrain from procreating as a condition of community control. A five-justice majority struck down the condition as overbroad under state law, and thus avoided the question of whether strict scrutiny would apply in a constitutional challenge to such a condition.

David says he plans to donate all of the proceeds from this auction to charity. Given that individual bobbleheads have sold for more than $400 on eBay, this set could easily sell for more than $1000. I will post a link to the auction once David has it up and running on eBay.

U.S. Court of Appeals for the Eleventh Circuit denies rehearing en banc in Alabama sex toys case: I'll post a copy of the order online tomorrow, but I can report now that the order, which was entered last Friday, states that no one on the court asked for a poll concerning whether to take the case en banc. You can access the ruling of a divided three-judge panel in the case at this link.

Back home: I'm pleased to report that I have returned safely from my very enjoyable trip to St. Louis. This trip was my first encounter with 50-seat US Airways Express regional jets. Now if only those airplanes actually offered air conditioning.

Having a great time in St. Louis: The talk that I delivered last night to the Judges of the U.S. Court of Appeals for the Eighth Circuit and other distinguished guests to kick-off the conference hosted by the Eighth Circuit and the Federal Judicial Center on the future of electronic filing in the U.S. Courts of Appeals seemed to be very well received.

The conference is being held at a quite lovely hotel, and I am very much enjoying my first trip ever to St. Louis. Sadly, the Cardinals baseball team is playing in Houston, so I won't be able to see in action while I'm in town the best team in baseball this year during the regular season.

Here are three random facts that I learned in preparing and delivering my speech last night: (1) the Eighth Circuit recently became the first and only U.S. Court of Appeals to have a majority of George W. Bush nominees among its active judges; (2) two of its newest judges are quite young, but the younger of those two isn't the one whom I had suspected; and (3) First Circuit Judge Bruce M. Selya no longer serves on the Judicial Panel for Multidistrict Litigation.

Today I will be attending the conference sessions, and tonight I'll be heading back to Philadelphia. More updates will likely appear here before the day is over.

"Injunction sought against trespass law": The Honolulu Advertiser today contains an article that begins, "The American Civil Liberties Union of Hawai'i is asking for a court order barring the state from enforcing a law that gives public officials the authority to ban individuals from public places."

"Supreme Court Agrees to Hear Another Case Involving Party Primaries and Associational Rights": Law Professor Rick Hasen, at his "Election Law" blog, takes note of the grant of review in (what else?) an election law case.

"9th Cir. memdispos now on-line!" A reader who is a certified appellate law specialist in California emails to draw this news to my attention. Making non-precedential opinions widely available, as the Ninth Circuit has now done, is typically the first step in allowing such opinions to be cited back to the issuing court.

"Massive storm hits area": The Philadelphia Inquirer has this news update on the nasty weather I left behind in the Philadelphia area on my trip today to St. Louis. Just received an update from home, where everyone is fine, but the trip home this evening was a test of endurance for those in my neighborhood.

Divided three-judge Ninth Circuit panel rejects tobacco companies' compelled speech claim: In this decision issued today, three tobacco companies contended that the State of California violated their First Amendment rights by imposing a surtax on cigarettes and then using some of the proceeds of that surtax to pay for advertisements that criticize the tobacco industry. By a vote of 2-1, the Ninth Circuit has now rejected that argument.

See you in St. Louis: New posts will appear later today, because now I must travel to St. Louis, Missouri, where I will be the keynote speaker this evening at a dinner that kicks-off a conference hosted by the U.S. Court of Appeals for the Eighth Circuit and the Federal Judicial Center on the future of electronic filing in the U.S. Courts of Appeals.

The next time I will be making a presentation at an event that offers CLE credit will be in New York City on November 11th and 12th, 2004 at DRI's fifth Appellate Advocacy Seminar. As the brochure for the seminar reveals, at the DRI event I will be part of a quite distinguished faculty of consisting of appellate judges, law professors and other appellate practitioners. Online registration for the DRI seminar is available via this link.

"Cruise Lines, Disabled Spar Over Accessibility; A California woman's suit says U.S. law should apply; Foreign operators dispute that claim":This article previewing a case in which the U.S. Supreme Court granted review this morning appears today in The Los Angeles Times.

"Court to Hear ADA Suit Over Cruise Ships": Hope Yen of The Associated Press provides this report. And Lyle Denniston reports that the Court, among the eight cases it agreed to review this morning, has granted certiorari in a much-anticipated eminent domain case from Connecticut. More details to follow.

Another Justice Sandra Day O'Connor bobblehead doll goes up for auction online at eBay: After a short lull, those in the market for this latest Green Bag creation have another opportunity to try to become the highest bidder. As of this moment, the item has received only one bid, for a mere $15.00. This is a ten-day listing, and nearly nine days of the auction remain. The auction is scheduled to end on Wednesday, October 6, 2004 (the first Wednesday in October) at 7:18 p.m. eastern time. The eBay listing is accompanied by three photos of the doll, including an extreme close-up of the cow bobblehead.

Earlier this month, Justice O'Connor bobblehead dolls sold on eBay for $300.00 and $285.00.

"Hamdi: The Price of Freedom is High." Lyle Denniston has this post online at "SCOTUSblog." As I noted earlier today, the agreement to release Yaser Esam Hamdi from the custody of the United States government can be accessed here.

Three-judge Ninth Circuit panel upholds as lawful the vast majority of provisions contained in the adult entertainment ordinance of Maricopa County, Arizona: The panel did, however, "hold unconstitutional the prohibition on specified sexual activity" contained in the ordinance. You can access today's ruling at this link.

Fifteen Florida counties use a paperless, touchscreen method of voting. As is alleged, these touchscreen systems do not produce a paper record of votes. Accordingly, the fifteen counties where they are employed lack a manual recount procedure, which is available in Florida's remaining fifty-two counties. In the federal claim, Plaintiffs allege this "non-uniform, differential standard" violates their rights to due process and equal protection under the Fifth and Fourteenth Amendments to the United States Constitution.

The federal district court had abstained from resolving this federal constitutional challenge on the merits. Today's ruling requires the district court to address the merits of the challenge.

"Can the Court clean up its Blakely mess?" That's the subject of this week's installment of "Debate Club," hosted by legalaffairs.org. The participants in this week's discussion are Law Professors Stephanos Bibas and Douglas Berman.

The "20 questions" interview that I published earlier this month was the twentieth consecutive monthly "20 questions" interview. The feature is a favorite of mine and also of many of this blog's readers, yet it requires a considerable amount of effort from me in researching the interviewee and drafting the questions and from the interviewee in responding to the questions.

From the outset, I have expressed a willingness to continue the "20 questions" feature for as long as appellate judges are willing to participate as interviewees.

In order for the feature to continue, I must obtain a replacement October 2004 interviewee by this Friday, October 1, 2004. Any appellate judge willing to volunteer can do so by sending me an email, a process that can be initiated by clicking here.

I will provide the replacement interviewee with his or her questions in writing via email on Friday, October 8, 2004, the interviewee can have until Friday, October 22, 2004 to provide his or her answers, and the interview will be published online on Monday, October 25, 2004.

If I am unable to obtain a replacement October 2004 interviewee by this Friday, this web log's "20 questions for the appellate judge" feature will permanently come to an end after twenty quite remarkable installments in twenty months.

In this appeal, we conclude that Article I, section 2, clause 4 of the United States Constitution is mandatory, imposing upon a state executive the duty to issue a writ of election when one of her state's seats in the United States House of Representatives ("House") becomes vacant during a congressional term. Because Robert Taft, Governor of Ohio ("Governor Taft"), refused to issue a writ of election when one of Ohio's seats in the House became vacant due to the expulsion of James A. Traficant, Jr. ("Traficant") and more than five months remained before the next Congress would convene, we hold that Governor Taft violated Article I, section 2, clause 4 and denied the voters in Ohio's Seventeenth Congressional District, including members of the American Civil Liberties Union ("ACLU"), their rights to vote and to equal representation in violation of the Fourteenth Amendment. Accordingly, we REVERSE the district court's decision and REMAND so that the district court may award appropriate declaratory relief and attorney's fees to the ACLU.

"Sentencing Tops High Court's New Term; Justices also to tackle disputes over beef ads, wine, marijuana": In what will likely be my final mention of Tony Mauro this morning, he previews the cases in which the U.S. Supreme Court has already granted review in his "Court Watch" column (subscription required) published today in Legal Times.

As a sign of Arnold's stature, eight of the nine Supreme Court justices issued statements after hearing of his death. "He performed exemplary service for the judiciary through his work on the Budget Committee of the Judicial Conference," said Chief Justice William Rehnquist in a statement. "A brilliant, brilliant man, Judge Arnold was a model of humility and self-deprecation," said Justice Clarence Thomas, who as the 8th Circuit's "circuit justice" saw him often at conferences. Justice Ruth Bader Ginsburg, herself a cancer survivor, said, "He coped with his illness with unrelenting courage. Others, including me, gained strength from his example."

Said Justice Antonin Scalia: "His carefully reasoned and beautifully written opinions were models of the art of judging. He has been a friend of mine since the days when he finished ahead of me (and first in the class) at Harvard Law School." Justice Stephen Breyer called Arnold "a great judge and a marvelous human being," and Justice Anthony Kennedy said, "It is of great importance to the federal judiciary that it can continue to attract jurists of the stature of the late, splendid Richard Arnold. His intellectual interests were vast, his character upright, and his search for truth and justice unyielding."

Justice Sandra Day O'Connor said, "He always contributed his time and effort to improve the judiciary and to support efforts to help other judges around the world improve their own systems." Added Justice John Paul Stevens: "Richard Arnold was a great judge, a true scholar, a wonderful human being, and an excellent golfer. I enjoyed every minute that I spent with him and will surely miss him."

The complete text of today's "Inadmissible" column is available at this link (subscription required).

"Clerks Bemoan Breach of Confidentiality; Scores of former high court clerks, two former attorneys general, and others criticize disclosure in Vanity Fair article": Tony Mauro has this article (subscription required) in today's issue of Legal Times. "SCOTUSblog" recently posted online the Vanity Fair article, and you can access it via this link.

It's the first Monday before the first Monday in October:The U.S. Supreme Court today holds its "long conference," at which the Justices consider whether to grant review in cases that have accumulated over the Court's summer recess.

Although not until next Monday will we learn the identities of the cases in which review has been denied, the Court could issue as early as later today or any time tomorrow a list of cases in which certiorari has been granted. law.com's Tony Mauro today has this preview of the cases in which a grant of review is most likely.

"Supreme Court could have last word on stadium": The Fort Worth Star-Telegram today contains an article that begins, "The U.S. Supreme Court, whose justices are most likely oblivious to whether Arlington becomes the home of the Cowboys, could make a decision today that would affect use of eminent domain for such projects." The article appears to overlook that one Justice in particular is a huge Dallas Cowboys fan.

"Rehearing sought on tax breaks; Kentucky, 3 other states fear job loss": The Courier-Journal of Louisville, Kentucky today contains an article that begins, "The 6th Circuit Court of Appeals has until Thursday night to consider a ruling that outlawed certain corporate tax breaks in Ohio and threatens similar programs in Kentucky, Tennessee and Michigan."

"Killers' deals to avoid death put Oregon's system on trial; The outcomes of two high-profile cases frustrate both critics and supporters of the capital punishment process":This article appears today in The Oregonian.

"Half of Pitcairn Island's adult male population goes on trial": The New Zealand Herald today contains an article that begins, "Pitcairn Island in the South Pacific will host one of the most sensational trials in British legal history this week, with seven men facing nearly 100 charges of rape and child sex abuse dating back to the 1960s."

"Was new indictment dictated by strategy? Lawyers say charging deported USF teacher Mazen Al-Najjar may really be about the Sami Al-Arian case."This article appears today in The St. Petersburg Times. The home page of that newspaper's web site is, as you would expect, largely devoted this morning to the imminent arrival of Hurricane Jeanne.

Same-sex marriage-related news from here and there: From Georgia, The Atlanta Journal-Constitution today contains an article that begins, "A Fulton County judge hinted Friday that she may be unwilling to halt a referendum to ban gay marriage, citing a Georgia Supreme Court ruling in an 84-year-old case." And The Gwinnett Daily Post reports that "Judge pulls surprise in gay marriage lawsuit."

"Ads may affect race; Warren McGraw could be hurt by campaign spots": The Saturday Gazette-Mail of Charleston, West Virginia today contains an article that begins, "Once considered a lock for re-election, state Supreme Court Justice Warren McGraw is looking vulnerable."

"Report says state leads in 3-strikes convictions; Critics say anti-incarceration group skews facts": The Ventura County Star yesterday contained an article that begins, "California has scored four times as many convictions under its three-strikes-and-you're-out law than all other states with similar sentencing guidelines combined, according to a report released Thursday by an anti-incarceration group." A related graphic can be viewed by clicking here.

"State's highest court to hear town case on public records": The Greenwich (Conn.) Time on Wednesday published an article that begins, "Perhaps sensing its potentially far-reaching ramifications after the Sept. 11, 2001, terrorist attacks, the state's highest court will now decide a landmark public records case involving access to aerial reconnaissance photographs and maps of Greenwich." The article has generated this discussion thread at Slashdot.

"Farmer paints Ten Commandments on barn": The Associated Press provides this report, in which it is noted that "Jeff Gamso, legal director of the American Civil Liberties Union of Ohio, said there is no apparent infringement on anyone's rights because Power is expressing himself on private property."

"Lawyers Held in Contempt by S.C. for Skipping Oral Argument":This article appears today in The Metropolitan News-Enterprise. I previously mentioned this matter last night in a post you can access here.

"Fellow alumni speak up for law grad hounded by feds; Efforts to keep $61,000 from reported prostitute vex Stanford classmates": Josh Richman has this article today in The Oakland Tribune. I previously mentioned this matter in a post you can access here.

"Commandments on display": The Daily Herald of Henry County, Georgia today contains an article that begins, "Downplaying the possibility of a court challenge, Henry County officials unveiled a framed copy of the Ten Commandments Thursday in the county courthouse."

"Broward judge accepts reprimand, $15,000 fine for unsigned e-mail": The South Florida Sun-Sentinel today contains an article that begins, "Broward County Court Judge Robert F. Diaz has accepted that he should be publicly reprimanded, fined $15,000 and suspended for two weeks without pay for firing off an anonymous e-mail to another judge that resulted in a criminal investigation." And The Miami Herald reports that "Judge faces penalty over e-mail."

"House OKs limit on pledge cases; It would bar federal courts from hearing 'under God' suits": The Sacramento Bee today contains an article that begins, "Worried that Sacramento activist Michael Newdow will prevail if he again challenges the constitutionality of the Pledge of Allegiance in federal court, the House voted Thursday to eliminate that risk."

In declining to evaluate the merits of this case, we are in no way unmindful that the legal questions raised are significant. The Internet is transforming our economy and culture, and the question whether it is covered by the ADA -- one of the landmark civil rights laws in this country -- is of substantial public importance. Title III's applicability to web sites -- either because web sites are themselves places of public accommodation or because they have a sufficient nexus to such physical places of public accommodation -- is a matter of first impression before this Court. Unfortunately, this case does not provide the proper vehicle for answering these questions.

Sullivan, through his band Survivor, has been fortunate enough to have a successful rock band, succeeding in a business where many fail. CBS, through its show Survivor, has (for better or for worse) revolutionized the world of reality television. Both Sullivan and CBS are using the same mark, but we hold that there is no likelihood of confusion in the minds of consumers.

"Court Rules a Horse Is Not a Vehicle": The Associated Press reports here that "The state Supreme Court ruled that Pennsylvania's drunken driving law can't be enforced against people on horseback, a decision that inspired the dissenting justice to wax poetic."

Justices serving on the Supreme Court of Pennsylvania issued a total of three opinion in the case. You can access the majority opinion here, a concurring opinion here, and the partially rhyming dissent here.

Unlike the last time that this particular Pa. Supreme Court justice employed rhyme in an opinion, this time none of his colleagues appear to have criticized him for doing so. More details on that earlier episode can be accessed at this link.

"Hon. Richard S. Arnold, R.I.P." Law Professor Richard W. Garnett, who clerked for Judge Arnold before going on to clerk for Chief Justice William H. Rehnquist, has this post at the blog "Mirror of Justice."

"Arkansas jurist Richard Arnold dead at 68; Esteemed career spanned 25 years on federal district and appellate benches": The Arkansas Democrat-Gazette contains an article reporting this very sad news today. The article begins, "Richard Sheppard Arnold, the bow-tied Arkansas jurist whose inimitable legal brilliance and scrupulous fairness landed him on the short list for a seat on the U.S. Supreme Court, has died."

Don't feed the terrorists: Today a divided three-judge panel of the U.S. Court of Appeals for the Third Circuit issued a decision addressing "whether providing food and setting up shelter for people engaged in terrorist activities constitutes affording 'material support' within the meaning of the Immigration and Nationality Act." Senior Circuit Judge Ruggero J. Aldisert, joined by Circuit Judge Samuel A. Alito, Jr., answered that question in the affirmative.

That the BIA’s finding cannot be upheld is underscored through the government's suggestion at oral argument that the provision of a cup of water to a terrorist could constitute "material support." I have no doubt that under the right facts, the provision of a single glass of water to a terrorist could be material support. If bin Laden were dying of thirst and asked for a cup of water to permit him to walk another half mile and detonate a weapon of mass destruction, such support would be "material" to terrorism. But those facts are not before us, and permitting a mere cup of water, without more, to be "material support" reads "material" out of the statute.

"SCOTUSblog" posts the Vanity Fair article that promises a behind-the-scenes look at Bush v. Gore based on interviews with law clerks to the U.S. Supreme Court's Justices: You can access the article, in PDF format, via this link.

"The world has bigger problems than L.A.'s wisely eliminated cross": Gerald Plessner has this op-ed today in The Pasadena Star-News. And this week's issue of The Tidings, the weekly newspaper of the Los Angeles Archdiocese, contains an essay entitled "Removing the Cross: American and French perspectives" by Bishop J. Thomas Curry.

"The GOP backpedals on judges": The Hill today contains an article that begins, "Senate Republican leaders have backed away from a strategy they adopted this summer to brand Democrats as obstructionists by scheduling nine cloture votes this month on President Bush’s federal appellate-court nominees."

Appellate procedure from hell: "The Legal Reader" blog posts here about a decision a California state appellate court issued today in a case that the court described as "the appellate procedural case from hell."

Unlike when work caused me to be away from home last week, this time it appears assured that my hotel will have a working high-speed internet connection. Check back for more updates later today. In the interim, any readers who wish to draw to my attention court rulings or law-related news coverage are invited to do so via email.

"Judge Says She Erred in Capital Case, Dissents": Jeff Chorney of The Recorder today has an article (subscription required) in which he reports, "Although the Ninth Circuit has a history of overturning California death penalty convictions and has received a lot of criticism over the years, it's almost unheard of for a judge to reverse herself, even in a death case."

"House Backs Crack Down on Video Voyeurs": The Associated Press provides a report that begins, "Calling video voyeurism the new frontier of stalking, the House on Tuesday approved legislation to make it a crime to secretly photograph or videotape people, often for lascivious purposes."

As The AP's article notes in passing, this proposed federal criminal legislation would only prohibit upskirt photography "in the special maritime and territorial jurisdiction of the United States." Thus, outside of that rather limited geographic area, whether this conduct is criminal or not will depend on state law.

Let me add a note to The AP's headline writers -- wouldn't "crackdown" (which is a noun) be the word you're looking for, you punsters?

"The Department Of Justice Is Forced to Admit Serious Error in the Detroit 'Terrorist Cell' Case: Judges' Key Role In Curbing 'War on Terror' Excesses." Noah Leavitt has this essay today online at FindLaw.

And an editorial entitled "A Bonehead on History" begins, "Remember the poll a few years back that found more Americans could name the Three Stooges than the three branches of government? Or the survey, also conducted by the Philadelphia-based National Constitution Center, in which one in four adults couldn't name a single right guaranteed by the 1st Amendment?"

"Blogs look burly after kicking sand on CBS; Bloggers enjoy a moment of glory after pooling their expertise to uncover the truth about the forged memos on Bush's service record":This article will appear in Wednesday's issue of The Christian Science Monitor.

"California Court Cuts Philip Morris Smoker Award": Reuters reports here that "A California appeals court has ruled that a smoker's record-breaking $3 billion punitive damages award against Philip Morris was still "excessive" even after being reduced by a trial judge to $100 million and must be halved again."

"Justice Stevens Disputes Media Coverage": Justice John Paul Stevens has a beef with Dahlia Lithwick's op-ed entitled "Off the Bench" published August 29, 2004 in The New York Times, according to this report from Gina Holland of The Associated Press.

"ACLU requests restraint on press": The Omaha World-Herald today contains this amazing article, which begins "In a stark turnabout from its free-speech advocacy, the ACLU urged a judge Monday to prevent the Omaha World-Herald from publishing the name of the Plattsmouth, Neb., man who sued the city over a Ten Commandments monument."

"Conference Adopts Cost-Containment Plan in Wake of Limited Congressional Funding; Continues Push for Court Funds": The Judicial Conference of the United States has just held a meeting, and this press release reports on some of the results.

Meanwhile, the Administrative Office of the U.S. Court has its own TV newscaster -- click here to see for yourself (Windows Media Player required). Glad to see that my confidence in Max Headroom's ability to land a new gig wasn't misplaced.

In conducting searches of automobiles seeking entry into the United States through a border crossing, the federal government now has carte blanche to search and destroy all personal property that does not affect vehicular operation: So asserts the dissent in this ruling that a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued today.

Today's federal criminal law lesson -- Don't mail cornstarch: Today a three-judge panel of the U.S. Court of Appeals for the Third Circuit issued a decision that considers "the narrow question of whether the mailing of an envelope containing cornstarch meant to resemble anthrax, but containing no written message, constitutes a 'communication ... containing any threat ... to injure the person of the addressee'" as prohibited under federal law. By a 2-1 vote, the panel answered that question in the affirmative.

"Question 3 challenged anew; Heller says state high court biased toward lawyers, who oppose measure": The Las Vegas Review-Journal today contains an article that begins, "The future of the Keep Our Doctors in Nevada initiative, also known as Question 3, remained uncertain Monday evening as the Nevada Trial Lawyers Association again sued for its removal from the ballot. The latest lawsuit capped a flurry of legal action that began on Saturday when the Nevada Supreme Court criticized the accuracy of the language in the ballot measure and called upon Secretary of State Dean Heller to rewrite it."

"Pa. Supreme Court puts Nader back on ballot; But it isn't the end of the battle; Hearings must be held on allegations that his petition campaign was marred by fraud":This article appears today in The Philadelphia Inquirer. And The Pittsburgh Post-Gazette reports that "Nader's ballot spot in Pennsylvania still up in air."

"Death penalty for minors: Cruel and unusual; As the Supreme Court hears arguments on using the death penalty against minors, the AMA joins the voices of science and international leaders against it." The September 27, 2004 issue of the newspaper of the American Medical Association contains this editorial.

In news from Alabama: The Anniston Star today contains an article headlined "Supreme Court candidates in state breaking the bank" that begins, "Supreme Court judges are elected to make fair and impartial rulings and hear every case with an open mind. But record breaking amounts of money that are pouring into Alabama's race this year are casting doubt on that basic duty, judicial observers say."

"Accountants call for reform in liability laws; Big Four firms warn more major players could fall in class actions if outdated rules aren't changed": The Toronto Globe and Mail contains this article today.

The United States Court of Appeals for the Federal Circuit plans to begin posting both precedential and non-precedential opinions to the website in portable document format (PDF) on October 18, 2004. Opinions are currently posted in Microsoft Word™ format.

I congratulate the Federal Circuit on both changes mentioned in this announcement. Currently, non-precedential opinions are not posted online at that court's web site. And I don't know of anyone outside the employ of Microsoft who prefers to have court opinions posted online in Microsoft Word format.

12. The Federal Circuit is the only federal appellate court that still posts its opinions to the Internet either in Microsoft Word format or as "EXE" files that require the user to download the file and then open it on his or her computer's hard disk before the decision in question can be viewed. Is there any hope in the near future that Federal Circuit might begin making its opinions available on its Web site either in HTML or PDF format?

I take this to be more of a suggestion than a question. I know nothing about our posting practices, or at least I knew nothing about them until you asked. I have passed along your observation about the other circuits to the people who post our opinions on the Internet and they will look into whether it is practical for us to post the opinions in another format for those who would find it more convenient. For what it is worth, I don't think they have gotten any format-related complaints in the past, but that does not mean that we could not do better. The e-world is constantly evolving, so perhaps we can improve our website in this respect.

And in response to Question 15, Judge Bryson offered some very interesting thoughts on the subject of non-precedential opinions.

"Judge Strikes Down Campaign Finance Rules": The Associated Press reports here that "A judge has struck down more than a dozen of the government's current rules on political fund raising with just weeks before Election Day, concluding federal regulators improperly weakened the nation's campaign finance law. U.S. District Judge Colleen Kollar-Kotelly ordered the Federal Election Commission to write new rules to govern key aspects of fund raising, including when candidates and outside parties can coordinate activities."

"Murder sentence changes unveiled; Some murderers could serve less than 10 years in prison under guidelines unveiled by the Lord Chief Justice of England and Wales, Lord Woolf": BBC News provides this report.

The asbestos litigation of Madison County: The St. Louis Post-Dispatch yesterday began a series entitled "Madison County: Where asbestos rules." You can access the lead article, published yesterday, at this link. Also in yesterday's newspaper were the following items:

"How Appealing" has a sponsor: No, I haven't entered into a twelve-step program to rid myself of an addiction to blogging. Rather, the purpose of this post is to point out that the good folks at LexisNexis will be sponsoring "How Appealing" for the next two months, and maybe longer. You mean that the opportunity to sponsor "How Appealing" exists? Apparently so.

"No Crusaders on the Bench: Congress must beware of judicial zealots nominated to the courts." Dahlia Lithwick has this article (subscription required) in the current issue of The American Lawyer magazine.

"The Bench: Blacked Out." Jeffrey Toobin has this "Talk of the Town" item in the September 27, 2004 issue of The New Yorker. The final paragraph of this blog post of mine from August 29, 2004 provides additional details.

"Chief justice: Gov. Rick Perry's appointment of Wallace Jefferson to preside over the Texas Supreme Court is praiseworthy and a promising development for justice."This editorial appears today in The Houston Chronicle.

"Doing justice": The Salt Lake Tribune today contains an editorial that begins, "It is hard to pinpoint the exact moment in American history when we decided that justice was too important to be left to the judges. But it was a big mistake."

"'Don't Amend' is on a roll; Amendment 3 foes outdo supporters by $500,000": The Deseret Morning News today contains an article that begins, "So far the campaign to kill a proposed state constitutional amendment to ban same-sex marriage has raised more than $535,000 -- a half million more than amendment supporters have raised."

"A Blogger's Creed: A member of the blogging class tells why they deserve your thanks." Andrew Sullivan has this essay in the September 27, 2004 issue of Time magazine. And a photograph of two of the contributors to the "Power Line" blog accompanies an article headlined "The Bloggers: How to knock down a story."

"Partisan judiciary guidelines rejected; State Supreme Court faults recommendations on speech": The St. Paul Pioneer Press on Friday published an article that begins, "The Minnesota Supreme Court has declined to adopt recommended amendments to the state's Code of Judicial Conduct that would allow judges to align themselves with political parties, according to an order published Thursday." And The Minneapolis Star Tribune on Friday reported that "Court rejects overhaul of judicial campaign rules." You can access last week's order of the Supreme Court of Minnesota at this link.

"Stewart could be a snowbird jailbird; Martha Stewart is ready for prison -- and if she can't go to Connecticut, she wants to serve her time in Florida": The St. Petersburg Times contains this article today.

"Cuban case may clarify U.S. power to detain; The Supreme Court will weigh the fate of criminal Mariel Cubans, most held for years past their original sentences":This article appears today in The Oregonian.

"They Changed Their Minds on Three Strikes; Can They Change the Voters'? Ten years ago, these men wanted to see three strikes become the law in California; Now they're leading the fight to reform it."This cover story will appear in this upcoming Sunday's issue of The Los Angeles Times Magazine.

In news from Guam: Saturday's issue of The Pacific Daily News contains an article headlined "Jury selection scheduled for November in Moylan case" that begins, "The island's first elected attorney general will face trial next month in connection with family violence charges against him."

"Blogger Who Faulted CBS Documents Is Conservative Activist": The Los Angeles Times provides this news update. According to the article, which will appear in Saturday's issue of The LATimes, the contributor known as "Buckhead" who posts to the site freerepublic.com is in fact attorney Harry W. MacDougald, "an Atlanta lawyer with strong ties to conservative Republican causes who helped draft the petition urging the Arkansas Supreme Court to disbar President Clinton after the Monica Lewinsky scandal." You can access his profile at this link. "Buckhead" is widely credited as the first to note the issues that have spawned the matter now known as "RatherGate."

"Florida court expected to rule on Nader candidacy": The Associated Press reports here that "The Florida Supreme Court is expected to rule late Friday on whether Ralph Nader will be on the state's November ballot as the Reform Party's presidential candidate." That court heard oral argument in the matter just this morning, and you can view a videotape of the oral argument online via this link (Real Player required). The briefs and other documents filed in the case can be accessed here. In the words of a "How Appealing" reader who emailed the video link, "In a sign of how seriously the Dems are going after Nader, they had Laurence Tribe argue this case today."

"Judge faces recall effort; Rape victim's mother mobilizes against Martin": The Lawrence (Kan.) Journal-World contains an article that begins, "The mother of a 13-year-old rape victim is helping organize a campaign to vote off the bench the judge who granted a lightened sentence for three men convicted in the assault."

Colorado newspaper publishes transcript of interview conducted by sheriff's investigators who questioned Kobe Bryant the night after a woman said he had raped her: You can access the lengthy interview transcript, published online yesterday by The Vail Daily News, at this link.

"Court Declines Woman's Suit Against Stillwater Police; Woman Claims Police Denied Due Process During Rape Investigation": The Associated Press reported here yesterday that "A Denver appeals court declined Tuesday to reinstate a lawsuit against the Stillwater Police Department by a woman who alleged she was raped by four ex-Oklahoma State University football players." You can access Tuesday's ruling, written by Circuit Judge Michael W. McConnell on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Tenth Circuit, at this link.

"Seabright nominated as U.S. judge": The Honolulu Advertiser today contains an article that begins, "Assistant U.S. Attorney Michael Seabright was nominated by President Bush yesterday as the fourth U.S. District judge in Hawai'i, to fill a position left vacant for more than 4 1/2 years."

U.S. Court of Appeals for the Eleventh Circuit holds that Title II of the Americans with Disabilities Act does not abrogate Eleventh Amendment immunity for damages arising from discrimination against the disabled in prison: You can view the decision, which issued on Tuesday, at this link. The opinion examines in detail the U.S. Supreme Court's recent ruling in Tennessee v. Lane, which reached the opposite conclusion with respect to discrimination against the disabled affecting access to court.

"A confirmation to bench unlikely; BYU counsel's prospects fade as time dwindles": Yesterday's edition of The Deseret Morning News contained an article that begins, "With only three weeks until expected adjournment, the prospects that Thomas Griffiths, the Brigham Young University general counsel, will be confirmed by the U.S. Senate as a federal appeals court judge are fading fast."

Anthrax scare at U.S. Court of Appeals for the D.C. Circuit: A reader emails that "Today three judges received phony anthrax letters at the Federal Courthouse for the Court of Appeals for the DC Circuit. They were sent to Ginsburg, Sentelle, & Tatel."

A federal appeals court yesterday granted a new trial for former naval intelligence officer Jay E. Lentz on charges of kidnapping and killing his ex-wife, ruling that the jury that convicted him had seen evidence that never was admitted in the case.

In a broad decision that resolved several issues in the increasingly complicated case, the U.S. Court of Appeals for the 4th Circuit also threw out the trial judge's finding that the lead prosecutor, Assistant U.S. Attorney Steven D. Mellin, had deliberately placed the evidence in the jury room. The court said the judge made "a rather broad leap" based on a lack of evidence and "clearly erroneous" logic.

The appeals court also took the rare step of removing the judge, U.S. District Judge Gerald Bruce Lee in Alexandria, from the case, ruling that his criticism of Mellin and other prosecutors would require a new judge for the retrial. Lee had accused Mellin of recklessly planting the evidence, which included Doris Lentz's notes about threatening phone calls Lentz allegedly had made to her.

The ruling, for now, settles the swirl of highly personal and unusual allegations involving a federal judge, a career prosecutor and a sitting U.S. attorney. The evidence battle, in which prosecutors accused Lee of bias and Mellin at one point suggested that defense lawyers may have tried to frame him, had come to overshadow Doris Lentz's death.

Have laptop computer, will travel: In retrospect, perhaps I should have provided more advance notice of my work-related trip earlier this week to Lancaster, South Carolina, because once I was in transit a number of South Carolina-based fans of the blog emailed to ask whether I was available for dinner. As it turned out, the amount of work I had to do and my distance from South Carolina's major cities (where those readers were based) prevented me from visiting with any readers.

Next week, I'm scheduled to make a two-day work-related visit to beautiful New Bern, North Carolina, another place where few "How Appealing" readers are likely to be found. Then, the week after that, I'll be in St. Louis visiting with the Eighth Circuit's judges. Finally, in mid-October, I'm scheduled to pay my second work-related visit in several years to Kansas City.

Seventh Circuit rules that jail's policy of directing incoming inmates to use a delousing shampoo doesn't violate their Fourteenth Amendment due process right to be free from unwanted medical treatment: You can access today's ruling, by a unanimous three-judge panel, at this link.

"Black judge makes history as first to lead Texas' highest court; New chief justice sees himself as a role model for many in the state":This article appears today in The Houston Chronicle. And the Supreme Court of Texas issued this news advisory yesterday concerning the announcement.

Back home: This evening's lack of posts was not due to any antipathy toward Lancaster, South Carolina's finest internet cafe. Rather, the work that required my presence in that small town happened to conclude a day early, in part due to Hurricane Ivan's likely disruption of air travel out of Charlotte, North Carolina later tomorrow.

As a result, I can live-blog from the comfort of my own home the end of the eBay auction of a Justice Sandra Day O'Connor bobblehead doll, which is due to wrap-up less than two hours from now at 1 a.m. eastern time Thursday. You can view the eBay listing and even offer your own bid via this link. The current bid is $265.00. Last Saturday, of course, the identical item sold on eBay for $300.00. If last Saturday's auction was any indication, the real serious bidding will occur in the last ten minutes of the contest.

Finally, thanks so very, very much to all the readers who accepted my request, while I was traveling out-of-town on business, to email links to court rulings and news stories of interest. I will try my best to post more of those items tomorrow.

"Judge Garza dead at 89; Nation's first Mexican-American district judge dies of pneumonia":This article appears today in The Brownsville (Tex.) Herald. The article begins, "U.S. Circuit Judge Reynaldo G. Garza, the nation’s first Mexican-American district judge, died Tuesday at a Brownsville hospital. He was 89."

And in other news, an article headlined "U.S. tribunal could lose members" begins, "President Bush's attempt to create a separate criminal justice system for foreign terrorism suspects may have hit a significant snag that could result in the replacement of more than half of the first U.S. military tribunal convened since World War II."

U.S. Court of Appeals for the Fifth Circuit declares Ivan terrible: Hurricane Ivan has caused the Fifth Circuit's Clerk's Office, located in New Orleans, to remain closed at least through Thursday. An announcement found here states that the Clerk's Office may reopen this Friday. More details on Hurricane Ivan can be found here at the web site of The Times-Picayune.

With approximately one day and seven hours left to go, a Justice Sandra Day O'Connor bobblehead doll being auctioned on eBay has a bid price of $265.00: I may be in Lancaster, South Carolina blogging from a coffee shop with a blazing fast internet connection, but that won't stop me from providing an update on the auction of an SOC bobblehead currently underway at eBay. You can view the eBay listing and even offer your own bid via this link. Last Saturday, of course, one of these sold on eBay for $300.00.

Hard and social science will of course progress even though the Supreme Court averts its eyes. It takes no expert prognosticator to know that research on women’s mental and physical health following abortion will yield an eventual medical consensus, and neonatal science will push the frontiers of fetal "viability" ever closer to the date of conception. One may fervently hope that the Court will someday acknowledge such developments and re-evaluate Roe and Casey accordingly. That the Court's constitutional decisionmaking leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the Court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication.

Programming note:My day job requires my presence in South Carolina for the next few days. I'll be bringing along my laptop computer, so it's possible (if the place where I'm staying truly offers internet access, as it supposedly does) that I will be able to provide new posts at night and before heading out in the morning. Readers are invited to send me emails (a process you can initiate by clicking here) to keep me informed of notable rulings and news coverage. And I promise to scour the local newspaper for any articles of interest to my readership.

I spent the afternoon (and will spend tomorrow morning) at the Eighth Circuit Practice Institute in St. Louis. This afternoon's session included a panel Q&A with Judges Wollman, Bowman, and Hansen. Judges Hansen and Wollman both referred repeatedly to How Appealing. In responding to questions about briefwriting and oral argument, one quoted from the twenty questions with Chief Justice Abrahamson and the other quoted repeatedly from the twenty questions with Judge Easterbrook. It was apparent that they both are very regular readers.

Since I know you're speaking here later in the month at the electronic filing conference, you may also find it of interest that, when asked about electronic briefs, Judge Hansen said that if the day ever arrived when he had to read briefs on a computer screen, he would retire. Judge Bowman said, "Ditto." Judge Wollman then said that he would not know what to do with a hypertext brief, and Judge Hansen said that he knew Judge Wollman was exaggerating because he knew that when Judge Wollman reads How Appealing, he knows how to click on the "blue" text to go look at something that interests him. It got a big laugh.

Thanks much to the reader who kindly took the time to send this along. I am certainly looking forward to my visit with the Eighth Circuit's judges later this month.

En banc U.S. Court of Appeals for the Federal Circuit holds, on a claim of willful infringement, that it is no longer appropriate to draw an adverse inference that an opinion of counsel was or would have been unfavorable from an alleged infringer's failure to produce an exculpatory opinion of counsel: Today the Federal Circuit issued its en banc ruling in the Knorr-Bremse case. For those who are likely to find this of interest, I need say no more. After the en banc Federal Circuit heard oral argument in the case, the "Patently Obvious" blog had a post titled "Willful Patent Infringement: en banc appeal."

BREAKING NEWS -- U.S. Court of Appeals for the Fourth Circuit decides latest appeal in the Zacarias Moussaoui case: You can access today's ruling, by a three-judge panel, at this link. Even those with a very quick internet connection will find that the opinion takes quite some time to download, because it is a scanned 90-page PDF file featuring plenty of redactions. Each of the three judges on the panel has written separately to some extent. As best as I can tell at first glance, Moussaoui has won on some of the issues, and the federal government has won on some of the issues.

"Debate Club": legalaffairs.org today has launched its "Debate Club" feature, which this week focuses on the question "How should the U.S. try suspected terrorists?" Click here to view the discussion as David B. Rivkin and Lee A. Casey debate Jenny Martinez.

"GOP Cools to Judicial Gambit": Roll Call today contains an article that begins, "Still short of the votes needed to change Senate rules, Republicans said they are likely to hold off on a unilateral attempt to end the Democratic blockade of judicial nominations until next spring at the earliest." The remainder of the article requires a subscription to access.

"A Trial Lawyer on Ticket Has Corporate U.S. Seeing Red; With Edwards as their lightning rod, business interests see Nov. 2 as critical to 'legal reform'": David G. Savage has this article today in The Los Angeles Times.

"Pepperdine Law School Adds Some Starr Power; As the new dean, the man who headed the Whitewater investigation brings his skills to the Malibu institution":This article appears today in The Los Angeles Times.

Chief Justice Abrahamson was born in New York City on December 17, 1933. She received her bachelor's degree from NYU in 1953, her law degree from Indiana University Law School in 1956, and a doctorate of law in American legal history in 1962 from the University of Wisconsin Law School. She is the recipient of fourteen honorary Doctor of Laws degrees and the Distinguished Alumni Award of the University of Wisconsin -- Madison. She is an elected fellow of the Wisconsin Academy of Arts and Sciences, the American Academy of Arts and Sciences and the American Philosophical Society.

Following law school, Abrahamson worked at Columbia University Law School and then in Madison, Wisconsin in the private practice of law for fourteen years and was a tenured professor at the University of Wisconsin Law School.

In 1976, Abrahamson was appointed to the Supreme Court by Wisconsin Governor Patrick Lucey and became the first woman to serve on that court. Wisconsin voters elected her to a ten-year term on the court in 1979. She won reelection in 1989 and became the court's first female Chief Justice in 1996. She again won reelection in 1999 and, from 2003 until recently, presided over a court on which females constituted a majority.

Chief Justice Abrahamson currently serves as President of the National Conference of Chief Justices, as chair of the board of directors of the National Center for State Courts, and as a member of the board of directors of the New York University School of Law Institute of Judicial Administration and the Council of the American Law Institute. She was chair of the National Institute of Justice, National Commission on the Future of DNA Evidence and has also served on the State Bar of Wisconsin's Commission on the Delivery of Legal Services and American Bar Association's Coalition for Justice.

Chief Justice Abrahamson's chambers are located in Madison, which is also where the Supreme Court of Wisconsin sits in the State Capitol.

1. As the first female to serve on the Supreme Court of Wisconsin, and as that State's first female Chief Justice, you are a historic figure. It has been recently reported that Wisconsin's Governor has decided to appoint the first African-American to the court. In your view, do the press and public focus too much on the breaking of these gender and racial barriers, or is the attention merited and useful? Do you think that a jurist's gender or race makes a difference in how cases or decided or in how the justice system is perceived? And does it surprise you, for example, when the press reports that your court divided along gender lines in reaching a decision, as happened in 2001 in an article headlined "High court limits dad's procreation; Justices split on gender lines in child support case"?

"Firsts" that break records or break barriers are events to celebrate. It's newsworthy that I was the first female justice in the 128-year history of the Wisconsin Supreme Court, especially in light of the fact that the Court declared in 1875 that women lawyers could not even practice before the Court. Justice Louis B. Butler, just appointed to the court by Governor James Doyle, is the court's first person of color. There is bound to be public interest in and media attention to these firsts.

The composition of the judiciary and court staff affects the public's perception of the institution. People are more comfortable with and are more trusting of an institution that reflects the rich diversity of our population. Ultimately, however, it is the ability of the judges and the quality of their judgments that are most important. Fortunately, society is recognizing that good lawyers, good judges, and good people need not all look alike.

As far as I know, the article you cite noting the gender split in State v. Oakley, 2001 WI 103, 248 Wis. 2d 654, 635 N.W.2d 760, was the first article of its kind with respect to our court. It was surprising that the gender split in that case was emphasized. Divisions of the court on gender lines are not usual but have occurred occasionally probably before and after Oakley.

2. In April 1999, you won reelection to the court by a decisive margin in a contest that an editorial published in The Milwaukee Journal Sentinel characterized as "the Supreme Court campaign from hell; the political equivalent of death by 1,000 cuts; a black hole of intrigue and stealth, sucking whatever good is left in politics into the mire of negative campaigning." Four of your colleagues on the court on which you served as Chief Justice publicly endorsed your opponent, and an article published after the election was headlined "High-court race brings reform cries." To the surprise of some, two years later you spoke publicly about your continued support for judicial elections, and that speech was published as a law review article. Let's say, hypothetically speaking, that a 51st State is created and you are put in charge of deciding the method for selecting that State's appellate judges. What method would you select, and why? In your view, is it appropriate for sitting justices to announce a position on whether their colleagues should be elected or defeated at the polls, have you announced your views in that regard with respect to your colleagues' candidacies, and why or why not? And finally, was it necessary for the Court to use a mediator to overcome the "deep-seated disputes" that arose during your most recent campaign for reelection?

The method for selecting federal judges was debated at the founding of our country. The method for selecting Wisconsin state judges was vigorously debated in the Wisconsin constitutional conventions. Each state has adopted its own method for selecting judges, and the search continues for the "best" method. Wisconsin has always elected its judges. It probably always will because of the state's deep populist and progressive traditions. We're comfortable with this system, even though, like all others, it has flaws.

Scholars, lawyers and bar associations have been nearly unanimous in condemning judicial elections; they support the federal system of appointment and "life tenure." But the federal system isn't without its own warts. Judge Reinhardt graphically described some of the worst aspects of federal appointments in his 20 Questions interview on How Appealing.

There is no perfect system for selecting judges. No system guarantees the best qualified judges, even if we were to agree on what "best qualified" means. Each selection method has its strengths and weaknesses, and states have evaluated the pluses and minuses of each selection system differently. Nevertheless, over 80% of state trial and appellate judges in this country stand for election of some type.

The method for selecting judges in a particular state--and in your hypothetical new 51st state--necessarily reflects the legal and political culture of the state, as well as its geographical size, population, and media markets. If the 51st state were similar to Wisconsin, I would favor non-partisan judicial elections with "long terms" for the judges. I have reread my NYU article, and I continue (perhaps not surprisingly) to be persuaded by my reasoning. I favor elections because I favor transparent government. Too much of what goes on in the appointment and confirmation process is kept behind closed doors; the public does not have an opportunity for meaningful participation in the process. Ideally, the elective system can also be an educational experience for both the judges and the electorate.

I do not subscribe to the view that elected judges are more (or less) likely than appointed judges to tailor a decision to the wishes of the legislature, the executive, or popular opinion. Experience demonstrates that appointed judges, even those with life tenure, are not free from outside pressures, whether in the selection process or thereafter. Indeed in recent years some life-tenured federal judges have asserted that their independence is being threatened.

No constitutional or statutory safeguards can guarantee judicial independence. The qualities most needed in judges are courage and personal integrity, both of which are indispensable to independence. The stakes are higher for elected judges who do not have life tenure, but the best judges, whatever the selection or retention system, are those who resist threats to judicial independence.

Nevertheless, I recognize problems inherent in the elective system. Low voter turnout and inadequate information regarding judicial qualifications diminish the democratic significance of elections. Issues of campaign speech and campaign financing loom large. See Republican Party of Minnesota v. White. But rather than scuttle elections, we should attempt to minimize the problems and should use elections as vehicles for voter education about the judicial system--especially the core value of decisional independence.

Although Wisconsin justices have and may support candidates for the court, I have never done so. My task is to work with the justices appointed by the governor and elected by the people.

"Deep-seated disputes," if any, dissipated with their exposure to the "sunlight" of a campaign, an affirmative vote for the sitting chief justice of about two-thirds of the electorate, and a commitment by all members of the court to work for the public good. The "chemistry" on the Wisconsin Supreme Court today is good, the collegiality pervasive, and we're committed to keeping it that way.

3. The composition of your court has changed quite a bit from what it was in 1999, and only two of the Justices who publicly supported your defeat at the polls continue to serve on the court. Are you pleased with how the court is functioning today as a collegial body, is the court current with its workload, and what additional duties and responsibilities, if any, does the Chief Justice of your court have in comparison with the duties and responsibilities of the other Justices?

The court is current with its workload and is functioning well, although we are always open to changing our internal procedures to improve the system. Each year the court decides about 1000 petitions for review, resulting in about 90 cases on full appellate review. Additionally, we hear attorney and judge discipline cases and petitions for rule making on such matters as the code of judicial conduct, the code of judicial responsibility, and matters of practice, pleading and procedure.

As chief justice, I preside over oral arguments and the court's adjudicative and administrative conferences. I work closely with the director of state courts and court staff, chief trial judges and district court administrators, and chair or serve on numerous court committees. Under Article VII, § 4 of our state constitution, "the chief justice shall be the administrative head of the judicial system and shall exercise this administrative authority pursuant to procedures adopted by the supreme court."

Although these administrative duties take a tremendous amount of time, they are rewarding. I have made a prolonged effort during my tenure on the court to promote court programs that improve the administration of justice. These include increasing volunteers in the courts, providing assistance to pro se litigants, certifying court interpreters, creating unified family courts, improving the protection of children, developing new opportunities for judicial education within the state, nationally and abroad, establishing legislative-judicial seminars, improving relations among state, federal and tribal courts, and increasing public outreach.

The court's jurisdiction is statewide. All the justices travel across the state and speak to many audiences. The court has undertaken a significant program of educating students and teachers about the courts, including our court with class sessions and our teacher institutes. We sponsor court "ride-a-longs" for state and local legislators and media and sentencing exercises for media. These are just a few of our outreach programs. You can find them described on our website: www.wicourts.gov. Many state courts are engaged in public outreach, and the federal courts are starting their own programs--all to the good of the courts and the people.

4. The U.S. Supreme Court in June 2002 announced its ruling in Republican Party of Minnesota v. White, No. 01-521. By a 5-4 margin, the Court struck down as unconstitutional a judicial campaign restriction intended to prevent candidates for elected judicial offices from announcing views on disputed legal or political issues. Do you view the U.S. Supreme Court's ruling as a positive development, a negative development, or somewhere in between?

It is still too early to evaluate the impact of White on either elected state judges or appointed federal and state judges. The concern is that White is a threat to an impartial judiciary and will weaken public trust and confidence in the judiciary. Pending and future cases will clarify the meaning and scope of White.

5. One of your former colleagues recently left your court to join the U.S. Court of Appeals for the Seventh Circuit. While she achieved confirmation without much difficulty, that has not been the case in recent years for all nominees to federal appellate court vacancies. As someone who can watch these developments unfold at something of a comfortable distance, what are your views on the judicial confirmation battles underway in the U.S. Senate, the use of filibusters, and the use of recess appointments to place filibustered nominees onto the federal appellate courts?

It's good on a personal level to be "at something of a comfortable distance" from the process, and my interest is academic, not personal. Although much is written about the "horrors" of the elective system, not enough scholarship and attention is devoted to the "horrors" of the federal appointive system and how the President and the Senate can improve the appointive system.

6. What are your most favorite and least favorite aspects of being an appellate judge?

My favorite aspects of being an appellate judge on the highest state court are that I can work on important cutting edge legal issues and resolve them fairly and justly not only for the parties involved but also for the law of the state, that I discuss the judicial system with the public and listen to the people's concerns, and that I have opportunities to improve the administration of justice. My least favorite aspect of the job is my concern about whether we have given enough time to each case.

7. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.

Chief Justice William Rehnquist. Chief Justice Rehnquist is widely viewed as being exceedingly fair as a chief justice in his relations with each justice and in presiding over the court's conferences and the federal system. Because I understand the difficulties of administering a court system and the variant interests that are necessarily involved, I have a tremendous respect for anyone that can earn such wide praise. The Chief Justice also has made the time to be an author and contribute to public understanding of the judiciary. Let's also not forget he is a son of Wisconsin!

8. How did you come to Governor Lucey's attention as a potential Supreme Court nominee, when did you first realize that you might be interested in being an appellate judge, what concerns if any did you have about becoming the first female to serve on the Supreme Court of Wisconsin, and did any of those concerns prove to have merit?

My first encounter with Patrick Lucey personally was around 1963–64, before he was governor. I was one of the drafters of Madison's open-housing ordinance making it unlawful to discriminate in the sale or rental of certain real estate on the basis of race. Almost every large realty company in Madison vehemently opposed the ordinance. Pat Lucey of Lucey Realty Co. was the lone realtor of a large company to appear at the city council meeting and publicly support the ordinance. (The proposed ordinance was very controversial; it passed on a tie vote of the council with the mayor casting the deciding vote).

I then met Pat Lucey again in the late 1960s when Madison was in turmoil over the Vietnam War. I was working with community leaders attempting to keep peace in the community and went to Pat's home late one night to urge him to offer the student community use one of his large vacant neighborhood lots as a garden. He agreed.

That was largely the extent of my interaction on a personal level with Pat Lucey until he appointed me in 1976. We did have a number of mutual friends.
I never considered becoming a judge until I saw my name in the newspaper in 1974 as a possible appointee to the Supreme Court. I did not get that appointment. I got the next one.

Because I do not think my gender negatively affects my ability to do any job I undertake, being a woman did not concern me when I became a judge.

9. The Journal Sentinel in early August 2004 published an article headlined "State's law students get free pass on bar exam; Despite detractors, age-old privilege likely to remain." According to the article, Wisconsin is today the only State to confer such a "diploma privilege" on its in-state educated law students, having outlasted the States of Mississippi, Montana, and West Virginia, all of which abandoned similar policies in the 1980s. Why does Wisconsin adhere to this policy, why should graduates of in-state accredited law schools be assured of the ability to practice law in Wisconsin while graduates of other fine out-of-state law schools are not, and what purpose does the bar exam serve in any event?

The diploma privilege makes good sense for Wisconsin. The Wisconsin Supreme Court (in charge of attorney admissions) is very familiar with the two excellent A.B.A. accredited schools in Wisconsin: the University of Wisconsin Law School and Marquette University Law School. Both schools have high standards for admission and graduation. To qualify for the diploma privilege, students must take certain courses (determined by our court as being fundamental) and achieve a certain average score for those courses. In short, we have confidence in the quality of graduates from these two schools.

Those graduates that do move out of state after graduation typically do very well on other states' bar exams. If there were any indication that graduates from UW or Marquette were less prepared for the practice of law compared with graduates from other schools, we would be the first to look for another system. There are currently no plans to alter the diploma privilege.

For states with only a few accredited law schools, the diploma privilege is a terrific system. In fact, some states are currently considering adopting the diploma privilege. Wisconsin should not be viewed as the last to retain the diploma privilege; I like to think of Wisconsin as the leader on this issue, not the holdout.

Wisconsin does give a bar examination to students who graduate from out-of-state law schools. I have served on the bar examination commission and have taken two bar exams. I do, however, have reservations about the traditional bar examination. I am not sure what the examination measures. Most students from accredited law schools end up passing a bar examination on at least the second attempt. While many law firms reimburse students for costs associated with taking the bar, the bar examination forces students who are already financially burdened to incur additional expenses; the bar exam delays students' entrance into the workforce while they study for the bar or wait for results.

As is the case with many systems, it is easy to criticize. The question of what is a better replacement looms large but is not easy to answer. The National Conference of Bar Examiners (headquartered in Madison and headed by a Wisconsin lawyer) is experimenting with different types of examinations. Until there is evidence of a better system (except for the diploma privilege of course), states will continue to use the traditional bar exams.

10. Congratulations on having recently begun your tenure as President of the National Conference of Chief Justices. Please explain what that organization exists to accomplish and whether you have any particular goals that you hope to achieve during your year as the organization's leader.

Thank you. I am quite honored to sit as this year's president of the Conference of Chief Justices. The organization was founded in 1949 as a means of getting the states' highest judicial officers together for discussions of issues affecting their respective judicial systems and learning from each other. Collectively we are able to exchange valuable information about current problems and possible resolutions, how various programs are working in different states and in what ways we might be able to improve the administration of justice in our own state. Each of us innovates and communicates.

The past, present and future presidents of the conference work together to achieve continuity of programs from one year to the next. I am therefore continuing the good work of my predecessors in streamlining the structure of the conference, improving our educational programs, increasing communication among the states, reviewing and commenting on the impact of proposed federal legislation on state courts, filing amicus briefs in appellate cases raising issues of concern to state courts, and moving forward with our activities in protecting children, promoting public trust and confidence, working with the federal judicial system, and tackling new and continuing issues in the administration of the criminal justice system.

11. When you joined the Supreme Court of Wisconsin, the state did not yet have an intermediate appellate court. How was your work on the Supreme Court, and the practice of law, different before the Wisconsin Court of Appeals came into existence? And please explain the direct review and bypass procedures that allow a case to come to your court without passing through the Court of Appeals, and how often and in what sort of cases are those procedures used?

The establishment of the court of appeals dramatically changed the work of the Supreme Court. Before the court of appeals, the Supreme Court decided several hundred cases a year and had a substantial backlog--perhaps two years' worth of cases. Now the Court focuses on the cases that raise significant legal issues of statewide importance and we are able to give those cases more time.

As you mention, we have two procedures, Direct Review and Petition to Bypass, in addition to a Petition for Review and Certification by the Court of Appeals. Both Direct Review and Bypass are rarely used.

Under Direct Review, this Court can reach down and give itself jurisdiction over a case, without any request from the parties or a court. As far as I can remember, the Court has never used this power.

In Bypass, a party to a circuit court case asks this court to hear the case before the court of appeals rules on it. Very few bypasses are requested, and in past years we have granted from zero and two bypasses.

12. What role should an appellate judge's personal and political ideology play in deciding cases, and when if ever is it appropriate for an appellate judge to decide how to rule based solely on his or her personal preference? Also, isn't it true that Justices serving on courts of last resort sometimes have little other than their own personal preference concerning the result to guide them in deciding cases?

An appellate judge's personal and political ideology or personal preferences should not play a role in deciding cases. In many cases I reach a decision that I would prefer not to reach. Nevertheless I feel compelled to reach that decision because of the facts and applicable law.

The justices of the Supreme Court of Wisconsin come from different political, ideological, social, geographical, and economic backgrounds. They bring their varied experiences in their personal lives and in their legal careers to the cases. The justices may have different jurisprudential views about the role of courts and about principles of statutory and constitutional interpretation. These experiences and different views of the law may very well play a role in decision-making. The key requirements of an appellate judge are to have an open mind and read (and check) all the materials submitted.

Decision-making involves judgment. If only one result was possible in every case, we would not need a court of seven persons, one judge would be sufficient. Indeed, we might not need any judges at all. A computer could spit out the decision.

13. You have taught at law schools, are regularly in the market for recent law school graduates seeking to be hired as law clerks, and review on a daily basis the work of people who graduated from one law school or another. In what ways should the Nation's system of legal education be reformed and/or improved?

Law schools keep changing their curriculum and practices. That's good. Law schools ought to be even more innovative and creative. Too many law schools follow other schools instead of making use of their own faculty and student talent and regional interests.

I like the approach taken at the school I know best, the University of Wisconsin Law School. I describe the school's approach as "eclectic." Students are exposed to traditional and non-traditional courses and methods of teaching and strong clinical programs. This cornucopia of offerings benefits not only the students, but also benefits Wisconsin's legal community, the general citizenry, other law schools, and other states.

14. How do you make use of your judicial law clerks, what qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates whom you wish were applying but haven't been?

Wisconsin Supreme Court justices (including me) have only one full time, salaried law clerk apiece. We also have the opportunity to collaborate with law school students who, as part of their legal education, work in chambers. Selecting a law clerk for each one-year term is one of the most important decisions I make. I look for people who have strong research, writing and analytical skills and are willing to think and rethink positions and work long hours--all with a sense of humor. I value clerks who have had varied life and work experiences. I have been fortunate to get applicants from law schools all over the country, but would also welcome a more racially diverse pool of applicants.

15. What are the three most important suggestions you have for attorneys concerning how they can improve their written work product filed with the Supreme Court of Wisconsin?

Lawyers should let their briefs "rest" for a week or so and then reread and edit them. Lawyers should ask other lawyers and non-lawyers in their office to read and edit the briefs. Too often lawyers jump right into the legal nuances of the case without explaining, in clear terms, the legal context in which the case arises and they fail to persuade the Court why it should decide in their favor.

16. Similarly, what are the three most important pieces of advice you have for attorneys concerning how they can improve their performance at oral argument?

First, know the record, your brief, and the cases on which you rely. Second, moot the case with other attorneys in your firm or with law students or faculty (a group often overlooked as a valuable resource). In short, practice practice practice! During practice sessions you will probably be asked many of the same the questions the Court will ask. Third, decide the two or three major points you want to make with the court. Keep them firmly in mind and make them at least once but probably several times. These same suggestions are given over and over by appellate judges and they warrant repeating.

17. A couple of years ago, The Journal Sentinel reported on a day when you found yourself "perched in one of Milwaukee's most detested judicial assignments" filling in for a vacationing judge in small claims court. How did you enjoy your time on the bench at small claims court, and is that something that you might volunteer to do again?

Working as a judge in small claims court was one of the most difficult tasks I have undertaken, but I enjoyed it immensely. I had to hear and decide a case from the bench every 15-20 minutes, usually without the assistance of lawyers arguing the issues. But I got to meet people, hear their problems directly from them, and resolve disputes right from the bench, all while helping people. I'll do it again even though I know that it will be harder for me to sit a week in small claims court than to sit a week in the Supreme Court. The preparation for small claims court was horrendous. I read numerous statutes, pages of regulations I had never seen before, cases and the sparse case files. I was overwhelmed by the amount of law I needed to master and have readily available, just in case the issue arose. The volume of cases and the tumult of the courtroom was exhausting.

When I first offered to sit in small claims court I was not fully aware of the difficulty of the assignment. I am now wiser and have a much greater appreciation for the work done by judges at all levels of our state's judicial system.

In keeping with my belief that judges ought to experience the judicial system from different vantage points, I have sat as a juror in both civil and criminal cases and have initiated a program in which Wisconsin court of appeals judges can sit as trial judges and trial judges can sit as court of appeals judges.

Judges' compensation in recent years has not kept up with the increase in the cost of living, and serving as a judge is therefore often not attractive to practicing lawyers. Some first year law graduates are paid as much as, or more, than experienced judges. Judges should be compensated reasonably so that judgeships attract good lawyers and are open to people who are not independently wealthy. Judges' compensation should be in line with the compensation of other state officials, with judges in other states, and with government lawyers. Any compensation system necessarily must reflect the state's fiscal situation.

19. Your biography shows that you were born and raised, and attended undergraduate and law school, outside of Wisconsin. At what point in your life did you become a resident of Wisconsin, and why? Also, if there is anything else that you would like to say about the quite lovely State of Wisconsin, please feel free to do so now.

My husband and I moved to Wisconsin in 1956 for his post-graduate work at the University of Wisconsin. We left Wisconsin from 1957-60, returned to Madison in 1960, and have been here ever since--more than 40 years. My son, now an attorney in California, was born and raised in Wisconsin.

I am always happy to talk about the great state of Wisconsin. While Wisconsin is often associated with its excellent sports teams and its tourism, it is a wonderful state to live in with a world-class university, a well-educated citizenry, a great history and a strong progressive tradition. Its people have sound values and a strong work ethic, and there is a consistent tradition of good government serving the people.

20. What do you do for enjoyment and/or relaxation in your spare time?

Whatever spare time I have I use to the maximum. I enjoy traveling and have visited much of the United States and all seven continents. I recently returned from a trip to China and Mongolia, where I combined judicial work (lectures) and tourism. The theater, art galleries, museums, and of course, shopping, are also activities I enjoy. My newest, and what promises to be my most consuming, spare time passion is my nine-month old grandson. As my law clerk and others will attest, no one is safe from having to view photos of him and hear about his feats in manipulating finger food.

"A Tournament of Virtue": Law Professor Lawrence B. Solum, author of the "Legal Theory Blog," has recently posted to SSRN a law review article that attempts to answer the question "How ought we to select judges?" You can access the article via this link.

And now the izzle is everywhere, and not just in commentary about Snoop Dogg or incongruous sound bites used as comic relief in movies (like Newhart's deadpan fo' shizzle in "Legally Blonde II") and commercials (like Drescher's nasally "my shizzle's gone fazizzle" in her role hawking everything Old Navy). It's actually been used, seriously, in the pages of Business Week and Fortune. Even Britain's High Court hasn't been immune, confronting what might as well have been a "foreign language," as one account put it, in a 2003 copyright case. The case, Mr. Justice Lewison (seems they don't allow judges to have first names in England) told the BBC, "led to the faintly surreal experience of three gentlemen in horsehair wigs examining the meaning of such phrases as . . . shizzle my nizzle." A truly remarkable bit of jurisprudence

On a related subject, thanks much to those readers who have already emailed to suggest questions or topics for October 2004's interviewee, D.C. Circuit Judge Harry T. Edwards. Any other readers who wish to propose questions or topics for questions that I should ask Judge Edwards should feel free to send them along via email, a process you can initiate by clicking here.

"For new justice, it's a case of perspective": The Newark Star-Ledger today contains an article that begins, "Roberto Rivera-Soto, the first Hispanic justice on the New Jersey Supreme Court, says he really enjoys a good debate."

"Vanity Fair Publishes Inside Scoop on Bush v. Gore": Orin Kerr has this post tonight at "The Volokh Conspiracy." Orin writes that because this article isn't freely available online, he "had to plunk down $4.50 for a very glossy paper copy" of the magazine.

The eBay auction of a Justice Sandra Day O'Connor bobblehead doll has concluded: The winning bid was in the amount of $300. You can view the eBay listing here and its bid history here. Fortunately for disappointed bidders, another SOC bobblehead is already being auctioned on eBay at this link.

"Rare honor for 1st Circuit's Selya; Yesterday marked the first time a portrait has been dedicated to an active 1st Circuit judge":This article appears today in The Providence Journal.

The article concludes: "Selya recalled being a law clerk for the late Chief U.S. District Judge Edward W. Day at the federal courthouse in Providence. And today, as the fifth Rhode Islander to ever sit on the 1st Circuit court, Selya's office is just down the hall. So, Selya said, 'In my entire professional career, I've come a total of about 85 feet.' But he said, 'I have enjoyed every inch of it.'"

Judge Selya was this blog's March 2003 "20 questions for the appellate judge" interviewee, and you can access that interview at this link.

Today we decide a narrow but not unimportant question regarding diversity jurisdiction in federal courts and the application of the doctrine of "improper joinder." This is the first time this Court en banc has addressed the issue of improper joinder, although a number of panels of this Court have previously addressed it. We hold that, when a nonresident defendant's showing that there is no reasonable basis for predicting that state law would allow recovery against an in-state defendant equally disposes of all defendants, there is no improper joinder of the in-state defendant. In such a situation, the entire suit must be remanded to state court. In this case, it is undisputed that the district court's decision that Smallwood's claims against the in-state defendant were preempted effectively decided the entire case. On these facts, we conclude that the district court erred in deciding the merits of the proffered defense of preemption and in not remanding the case to the state court from which it was removed.

"Apple Valley judge appointed to MN Supreme Court":This article appeared yesterday in The Apple Valley Sun Current. Unlike one of his colleagues on that court, however, this new justice doesn't yet have his own bobblehead doll.

"LR district will accept search ban; Schools have options, board members told": The Arkansas Democrat-Gazette today contains an article that begins, "The Little Rock School District will accept a decision issued by a federal appeals court that randomly searching students for weapons -- without suspicion -- should be banned." You can access last month's ruling of the U.S. Court of Appeals for the Eighth Circuit at this link.

"Senecas suffer setback in claim on state lands; Court rejects issue of illegal possession": The Buffalo News today contains an article that begins, "A three-judge federal appeals court Thursday unanimously affirmed decisions by U.S. District Judge Richard Arcara denying claims by the Seneca Nation of Indians to Grand Island and other islands in the Niagara River and a stretch of the Thruway property in southern Erie County." You can access yesterday's rulings by the U.S. Court of Appeals for the Second Circuit at this link (Niagara River islands appeal) and at this link (Thruway appeal).

"Clinton's outburst: racism at the top; The former US president has charged the Republicans with bigotry and judicial manipulation." Saturday's edition of The Weekend Australian contains an article that begins, "Bill Clinton has delivered an extraordinary blast at America's top judge, William Rehnquist, and an uncharacteristically bitter attack on Republican presidents Ronald Reagan and George W. Bush. Speaking before his recent health scare, the former president accused Rehnquist, the Chief Justice of the US Supreme Court, of deliberately politicising the system of appointing independent investigators, leading to years of relentless, politically motivated inquiries into his presidency."

Later, the article goes on to state:

According to Sue Bloch, a law professor at Georgetown University and an expert on US judicial history, you would have to go back 200 years to Thomas Jefferson to find a president or former president making such a bitter attack on a chief justice.

Dwight Eisenhower said in the 1960s that he regretted appointing Earl Warren as Chief Justice, but there had been no parallel to Clinton's comments since the career-long political feud between Jefferson and Chief Justice John Marshall, Bloch said.

One of Washington's most noted presidential scholars, Norm Ornstein of the conservative think-tank the American Enterprise Institute, said yesterday that some Washington insiders knew privately that Clinton held a low regard for Rehnquist but his views had never been expressed publicly and were "extraordinary things for a former president to be saying".

"I have no doubt the private thoughts of George Herbert Walker Bush or any other president about their opponents and other people, if made public, would make your hair stand on end," he said. "But even after you have left office, to actually say these things to a reporter is very unusual."

Ornstein said he believed Clinton had good reason to be unhappy about Rehnquist's appointment of Sentelle, and the resulting selection of Starr.

The appointment of Sentelle over more senior and less partisan judges was "at a minimum utterly insensitive to the intent of the law" governing such appointments, he said.

According to the article, the complete interview with President Clinton will appear in The Weekend Australian Magazine.

"High court upholds city's old poster ban; But Seattle will stick with law allowing some bills":This article appears today in The Seattle Post-Intelligencer. And The Seattle Times reports that "Poster ruling won't be felt."

"Opposing sides offer briefs in Tangipahoa prayer case": The Advocate of Baton Rouge, Louisiana today contains an article that begins, "Both sides in a federal lawsuit opposing prayers during Tangipahoa Parish School Board meetings see the issue as a debate on First Amendment rights."

"Finch praised at U.S. Senate committee hearing on renomination": The Virgin Islands Daily News today contains an article that begins, "Chief District Judge Raymond Finch was praised by members of the U.S. Senate Judiciary Committee at his renomination hearing Wednesday morning in Washington, D.C."

"Ninth Circuit Grants En Banc Review of Ruling on Terror Law":This article appears today in The Metropolitan News-Enterprise. And Bob Egelko of The San Francisco Chronicle reports today that "Court to review decision on aid to terror groups." I first reported here on yesterday's grant of rehearing en banc in this matter.

"Study: Bush Judges Most Conservative on Rights." Reuters reports here that "A study of thousands of federal court cases has found that judges appointed by President Bush are the most conservative on record in the areas of civil rights and civil liberties."

Senator John Kerry denounces U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas: The Associated Press reports here that "In a speech that blended political rhetoric with Biblical references, the Democratic presidential candidate also branded Supreme Court Justices Antonin Scalia and Clarence Thomas as out of the mainstream and said Bush will appoint more like them if he wins re-election."

U.S. Court of Appeals for the First Circuit holds that new U.S. Department of Justice policy limiting federal inmates' eligibility for placement in a community corrections center to the last ten percent of their sentence is contrary to law: This ruling is big news. As today's opinion explains:

The policy change that is the subject of this lawsuit was required by a December 13, 2002 Memorandum Opinion from the Department of Justice Office of Legal Counsel, which declared unlawful the BOP's prior practice of placing federal prisoners in community confinement to serve all or part of their sentences. [The inmate-appellant] argues that the BOP's policy is based on an erroneous interpretation of two statutory provisions of the Sentencing Reform Act of 1984, 18 U.S.C. secs. 3621(b) and 3624(c). According to this interpretation, these two provisions limit the BOP's discretion to place prisoners in CCCs to the lesser of the last six months or ten percent of their terms of imprisonment. Although the change in policy has generated a flood of lawsuits in the federal district courts, no court of appeals has yet spoken on the validity of the BOP's new policy. We do so here and conclude that the new policy is contrary to the plain meaning of 18 U.S.C. sec. 3621(b).

The decision whether to appeal from an order of the District Court is not a matter to be taken lightly by either a losing party or her counsel. An appeal is not just the procedural next step in every lawsuit. Neither is it an opportunity for another "bite of the apple," nor a forum for a losing party to "cry foul" without legal or factual foundation. An appeal is a serious matter because it is a claim of error by the District Court and an attack on the validity of its order. Consequently, if the appeal is wholly lacking in merit, there are consequences. Appellant herein now must face them.

You can access at this link today's ruling, which imposes damages on appellant's counsel under Federal Rule of Appellate Procedure 38.

"Gay dads get daughters plus praise from judge; The state was trying to remove two girls, 6 and 7, from foster parents who had been awarded long-term custody":This article appears today in The St. Petersburg Times.

"Rutland court wins noddin' noggin award": A reader who is one of my favorite U.S. Supreme Court correspondents has sent me an email titled "All bobblehead, all the time" to bring to my attention some recent news from Rutland, Vermont. On Tuesday, The Rutland Herald published an article that begins:

Rutland District Court has received a real head-shaker of a prize for its hard work.

The court has recently been awarded a bobblehead version of U.S. Supreme Court Chief Justice William Rehnquist. The nodding, black-robed doll recognizes Rutland for ranking among the top courts in Vermont in terms of reducing its criminal case backlog over the last six months.

"He came down here and we had a little bobblehead ceremony," said Nancy Corsones, who has presided in Rutland District Court for the past three years. She starts a new judicial assignment today in Bennington Family Court.

However, she was able to stick around Rutland District Court long enough to accept, along with the rest of the court staff, the wobbling Rehnquist trophy.

The genesis of the award can be traced back to a statewide judicial conference held in Burlington in January to discuss the need to reduce the backlog of pending criminal cases.

Vermont Supreme Court Chief Justice Jeffrey Amestoy pledged at that conference to award his own Rehnquist bobblehead to the court that made the most progress in reducing its criminal case backlog over the first six months of the year.

"Chief Justice Amestoy may have retired, but his Rehnquist bobblehead remains in my custody," Burgess wrote in a memo to court officials across the state before presenting the trophy in Rutland.

The Rehnquist bobblehead stands in a prominent spot high on a shelf looking over the court staff in Rutland.

The makers of the figure paid close attention to detail.

The black robe features gold stripes on each sleeve, similar to the one worn by Rehnquist during the impeachment trial in 1999 of President Bill Clinton. Also, the tie is made to resemble the one he wore on that trial's opening day.

In addition, the statuette of the 79-year-old chief justice is holding a small replica of the bound volumes of Supreme Court opinions.

Rehnquist received the first of the limited edition dolls in May 2003, and reportedly had quite a laugh.

The dolls have been coveted by collectors ever since. One of them sold last week for $375 on the Internet auction site eBay.

Other Supreme Court justices have been bobbleheaded, including Sandra Day O'Connor and John Paul Stevens.

The Rehnquist doll makes for an appropriate award in Vermont, due to his ties to this state. He owns a summer home at Caspian Lake in Greensboro.

"Sentencing guidelines revisited; A Supreme Court ruling is having a statewide impact":This article appears today in The Statesman Journal of Salem, Oregon. The article reports on this ruling that the Oregon Court of Appeals issued yesterday.

"Finch to go before U.S. Senate panel in renomination bid": The Virgin Islands Daily News today contains an article that begins, "Chief District Judge Raymond Finch will appear before the U.S. Senate Judiciary Committee this morning to speak about his experience and qualifications for a second term as the territory's top federal judge."

"New Seal, Sans Cross, Offers Other Changes; County unveils altered design, which also replaces the goddess Pomona, after ACLU threatens to sue": The Los Angeles Times has recently posted online a news update that begins, "The miniature gold cross that once adorned the Los Angeles County seal has been erased." You can view online both the current and the proposed new seal by clicking here.

Fourth Circuit Judge J. Michael Luttig did not participate in that court's en banc ruling addressing whether Blakely v. Washington preclude usual application of the U.S. Sentencing Guidelines: You can note his absence from the line-up of participating judges found on page one of the en banc opinions issued today. The Fourth Circuit's earlier en banc order announcing the result explained today did not include a list of participating judges. Nevertheless, Judge Luttig's absence does not come as a complete surprise. This oral argument summary that I previously linked to explains that Judge Luttig was not present for the en banc oral argument of the case.

U.S. Court of Appeals for the Tenth Circuit affirms dismissal of claims against City of Tulsa and State of Oklahoma arising from violent attacks that destroyed the African-American community of Greenwood, Oklahoma in 1921: You can access today's ruling, by a unanimous three-judge panel, at this link.

En banc U.S. Court of Appeals for the Fourth Circuit issues opinions in support of that court's previously-announced ruling that Blakely v. Washington does not preclude usual application of the U.S. Sentencing Guidelines: The opinions total 145 pages in length. Here's the court's description of who has joined which opinions:

Chief Judge Wilkins wrote the opinion, in which Judges Wilkinson, Niemeyer, Williams, Traxler, King, Shedd, and Duncan joined and in which Judge Widener joined as to all except Part VII.C. Judge Wilkinson wrote a concurring opinion. Judge Shedd wrote a concurring opinion. Judge Widener wrote a concurring and dissenting opinion. Judge Motz wrote a dissenting opinion, in which Judges Michael and Gregory joined. Judge Gregory wrote a dissenting opinion.

"Pentagon Says Guantanamo Prisoner Improperly Held": Reuters reports here that "The Pentagon has determined for the first time that one of the nearly 600 Guantanamo Bay prisoners was improperly held by the United States as an 'enemy combatant' and will be released to his home country, the Navy secretary said on Wednesday." And the American Forces Press Service has issued an article headlined "Tribunal Finds Guantanamo Detainee Not Combatant; Man to be Sent Home."

U.S. Court of Appeals for the Ninth Circuit grants rehearing en banc in terrorism-related case: You can access today's order granting rehearing en banc in Humanitarian Law Project v. USDOJat this link. The grant of rehearing en banc vacates this ruling on the matter that a divided three-judge Ninth Circuit panel issued in December 2003.

Very soon thereafter, it will be time for me to submit questions to the October 2004 interviewee, D.C. Circuit Judge Harry T. Edwards. Readers wishing to offer questions or topics that I should raise with Judge Edwards are invited to send them along via email, a process that can be initiated by clicking here.

It is worth noting that Judge Edwards is co-chair of the group that put into place the federal law clerk hiring plan. Readers who are pleased or displeased with how that process operates may wish to take advantage of this opportunity to have their comments heard and questions addressed.

Finally, the next interviewee vacancy is for December 2004. To volunteer to participate as an interviewee in the "20 questions" feature, as so many well-known federal and state appellate judges already have, all that an appellate judge needs to do is send me an email at the address noted on the top of the right-hand column of this page.

The notice describing Justice Scalia's presentation, which will occur on the evening of September 20th, begins: "What is the appropriate role of the federal judiciary in our republic? What would the Framers of the Constitution think of today's activist judges? Supreme Court Justice Antonin Scalia helps launch EPPC's Fall 2004 lecture series with remarks on 'The Courts and Democracy.'"

"Suspended Sentencing: The consequences of 'the single most irresponsible decision in the modern history of the Supreme Court.'" Benjamin Wittes will have this article in the October 2004 issue of The Atlantic Monthly. And from Indiana, The Post-Tribune reports today that "Courts ordered to continue sentencing."

"Stateless defended by Babauta anew; Governor asks Ashcroft not to contest Ninth Circuit ruling": Wednesday's edition of The Saipan Tribune contains an article that begins, "Gov. Juan N. Babauta is asking U.S. Attorney General John Ashcroft to withdraw from contesting the appellate court victory of so-called stateless persons in the CNMI in their quest for U.S. citizenship and attached statutory benefits."

"Anti-Abortion Group Wants Its Ads to Run": The Associated Press reports here that "A Wisconsin anti-abortion group asked the Supreme Court on Tuesday to let it run ads this fall despite a campaign finance law's restrictions on election-time political commercials."

The agenda for tomorrow's Senate Judiciary Committee confirmation hearing for judicial nominees is now available online: The lone federal appellate court nominee on the agenda is Sixth Circuit nominee Susan Bieke Neilson. She is one of the "Michigan Four," which means that her nomination has been going nowhere fast for quite some time now.

"Washington Judge Rules on Gay Marriage": The Associated Press reports here that "Echoing the ruling of another local court, a Thurston County judge ruled Tuesday that Washington state's ban on same-sex marriage is unconstitutional." You can access today's ruling by Judge Richard D. Hicks (biography available here, fifth item) of the Superior Court of Washington State, Thurston County, at this link.

Lust triumphs in sex discrimination appeal: Circuit Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit issued this decision today on behalf of a unanimous three-judge panel. In today's ruling, Judge Posner (the author of "Sex and Reason") writes in a parenthetical: "Lust is blonde; Sealy points out irrelevantly that blondes are not a statutorily protected class, which will disappoint hair colorists." Judge Posner's opinion largely avoids the pitfalls that might plague the typical jurist when deciding a sex discrimination case involving a plaintiff whose last name is defined as "usually intense or unbridled sexual desire." Indeed, Judge Posner writes near the decision's midpoint that Lust "is at least brave enough to go by her husband's last name."

"In Defense of Vladeck": A discussion of the Ninth Circuit's unique procedure for deciding cases en banc continues over at the new blog "The '04 Wall" in this post and the comment that follows. The two earlier installments of the conversation can be viewed here and here.

"Limits on damages a high stakes contest; The battle over Measure 35, which would set caps in medical malpractice verdicts, is shaping up to be pitched and pricey":This article appears today in The Oregonian.

Web site outage affecting the U.S. Court of Appeals for the Seventh Circuit enters its second week: First I praise the new look of the Seventh Circuit's web site, and next thing you know the site stops working. One hopes these two events are entirely unconnected. If you know why the site is down or when it may be back up and running, please let me know via email. Update: As of 2:50 p.m. eastern time, the site is back online, making these questions moot.

The issue raised in this case is whether each individual class member in a diversity class action must meet the $75,000 amount in controversy requirement, or whether the plaintiffs may aggregate their damages. To say that this question has been thoroughly examined is an understatement. See Allapattah Servs., Inc. v. Exxon Corp., 362 F.3d 739 (11th Cir. 2004) (Tjoflat, J., dissenting) (compiling cases and articles). In fact, one of my law clerks was asked to answer this very question on a civil procedure exam in 1999. Unfortunately, however, he does not recall the answer, so we must review the issue de novo.

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Until now, this court has yet to speak on the question. Today, we join with the majority of circuits which have considered the question and hold that Zahn has been overruled. We note that the majority of courts have been reaching this same conclusion for almost ten years now and Congress has yet to alter or amend sec. 1367 to correct them. For almost ten years, courts have acknowledged that the text of sec. 1367 unambiguously overrules Zahn, while its legislative history shows a clear intent to preserve Zahn. Rules of statutory construction teach that generally a court cannot consider the legislative history of a statute in interpreting its meaning unless the statute is ambiguous.

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Congress was not using 28 U.S.C. sec. 1367 as an opportunity to play "Hide The Ball," "Where's Waldo?" or "Find The Hidden Exclusion." To argue that the alternative interpretation is viable enough to make this statute ambiguous only begs the question of the meaning of the word "ambiguity." Moskal v. United States, 498 U.S. 103, 108 (1990) (discussing "the crucial question--almost invariably present--of how much ambiguousness constitutes ... ambiguity") (citations omitted). If we really wanted, it is likely that we could find just about any statute to be ambiguous. Language, as compared to mathematics, is inherently imprecise. This does not mean that we should abandon our traditional role of interpreting statutes based on the language which Congress chose to include in the text itself.

Nor are we persuaded by the now fashionable argument that because a number of brilliant minds have found this statute to be ambiguous, it is by definition so.

As noted supra, some courts have found a basis to consider and ultimately adopt the legislative history of sec. 1367, without the need of finding the statute ambiguous. See, e.g., Meritcare Inc., 166 F.3d at 222. The Third Circuit, for instance, has found that resorting to the legislative history was appropriate in answering the sec. 1367 question because this is one of those "rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters." Id. (quoting United States v. Sherman, 150 F.3d 306, 313 (3d Cir. 1998) (internal quotation marks removed, alterations in original); accord United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989). Perhaps the primary rule of statutory interpretation, however, is that a court will not look beyond the statutory text if the text is unambiguous. See BedRoc Ltd., LLC v. United States, 124 S.Ct. 1587, 1593 (2004). Of course, if the statutory text and legislative history are consistent, this primary rule is unnecessary because the result will be the same regardless of whether a court follows the rule or not. Therefore, the primary rule only matters where there is a contradiction between the statutory text and the legislative history. The "exception" discussed in Meritcare has the potential to turn the primary rule on its head because every time there is an actual conflict between the statutory language and the legislative history, the legislative history may prevail over the text of the statute.

The Third Circuit's ruling in Meritcare, which I believe reached the wrong result, can be accessed here. And today's Sixth Circuit ruling, in its entirety, can be accessed both here (PDF) and here (HTML).

"Hospitals, docs tout justices; Campaign targets Supreme Court": The publication Business First of Columbus has published an article that begins, "The state's top lobbying groups for doctors and hospitals will roll out everything from campaign buttons to Web sites in a bid to help elect three candidates to the Ohio Supreme Court this November."

"When -- If Ever -- Can Facts Found By Judges Lengthen Criminal Sentences? A Key Question Now Facing the Supreme Court." FindLaw columnist Vikram David Amar has this essay today. And The Express-Times of Easton, Pennsylvania today reports that "Sentencing uncertainty frustrates prosecutors."

"Amendment skirmishes continue": The Washington Times today contains an article that begins, "Legal battles regarding state marriage amendments are over in Louisiana -- and possibly in Michigan -- but three other states still are involved in the fight to put the issue to a statewide vote."

In news from China: People's Daily Online reports today that "Supreme People's Court to publish more information on judicial activities." The article begins, "To raise the openness and transparency of judicial work the Supreme People's Court will further improve its information release system, and publish on its bulletin more information on judicial activities on a monthly basis." The web site of The Supreme Court of the People's Republic of China can be accessed at this link.

The Sydney Morning Herald is reporting: Tuesday's edition of that newspaper will contain an article headlined "Inquiry into use of expert witnesses" that begins, "The State Government has ordered an inquiry into unethical expert witnesses giving evidence in court cases and into the practice of no-win, no-fee charging."

And in other news, an article headlined "Rapist brothers did have fair trial, appeal court rules" begins, "Two teenage gang rape victims will be spared the torment of facing their attackers a third time after an appeal by two of the men was dismissed in a test case yesterday." As of this moment, that ruling does not appear online at the web site of the Court of Criminal Appeal of New South Wales.

"Opening doors: Supreme Court justice reminisces at court dedication." The San Francisco Examiner today contains an article that begins, "Supreme Court Justice Sandra Day O'Connor, one of the world's most powerful woman, told a courtroom full of San Mateo County lawyers that she didn't start out that way." And late last month, while I was away on vacation, San Mateo County Times columnist Jerry Fuchs previewed Justice O'Connor's visit to Redwood City, California in an essay entitled "Sandra Day O'Connor to be honored in County."

"The Wilderness Campaign: Al Gore lives on a street in Nashville." The September 13, 2004 issue of The New Yorker contains this profile of Al Gore written by David Remnick. As you might expect, the U.S. Supreme Court is mentioned several times.

"Justice Wants Airline ID Case Kept Secret": The Associated Press reports here that "The U.S. Department of Justice has asked an appellate court to keep its arguments secret for a case in which privacy advocate John Gilmore is challenging federal requirements to show identification before boarding an airplane." I previously linked to the Brief for Appellant that Gilmore recently filed in the U.S. Court of Appeals for the Ninth Circuit in a post that you can access here.

"Porn In The U.S.A." and porn in China: The CBS News program "60 Minutes" this evening included a rebroadcast of that program's wildly popular "Porn In The U.S.A." segment. Coincidentally, in news from China, Xinhuanet today has an article headlined "Porn producers face severe punishment" that begins, "Those who are engaged in the profit-oriented production and dissemination of pornographic materials through the Internet, mobile communication terminals and 'phone-sex' services in China are subject to punishment as severe as life imprisonment, according to the latest legal interpretations."

"Ginsburg speaks on Jews and justice; The law has proven to be a 'bulwark against the kind of oppression Jews have encountered and survived throughout history,' the Supreme Court justice says in a speech at Touro Synagogue":This article appeared in The Providence Journal recently while I was away on vacation.

"Court backs cross-ownership ban":An article published today in The Chicago Tribune reports that "A federal appeals court Friday turned down a Tribune Co. request to allow media companies to own a newspaper and a broadcast TV station in the nation's biggest media markets."

"Group of Nev. lawmakers to take tax ruling to U.S. Supreme Court": The Associated Press reports here that "A group of Republican lawmakers who challenged a court ruling nullifying a two-thirds requirement for the Legislature to raise taxes has decided to take their appeal to the U.S. Supreme Court."

Coming soon to a newsstand near you: In the August 30, 2004 issue of Legal Times, Tony Mauro had an item in the "Inadmissible" column headlined "Vanity Project":

The latest buzz among Supreme Court insiders is that one or more of the law clerks who served during the momentous 2000 election case of Bush v. Gore are about to tell all -- or at least some -- about what went on behind the scenes at the Court. The details will be in the next edition of Vanity Fair, which hits newsstands in September. Contributing editor David Margolick is author of the piece, part of a package reviewing the Florida election debacle entitled "Path to Florida." When Margolick began this summer to look into what happened at the Court four years ago, he found that justices, lawyers, academics, and even journalists had all "moved on." But the law clerks were still angry, and Margolick says "several" talked to him at length. He won't reveal his findings, but says the story reports "more than we knew before about what happened at the Court during Bush v. Gore, and certainly more than I thought I could get."

Those with an online subscription to Legal Times can access the August 30, 2004 "Inadmissible" column at this link.

[T]he last week of December, we'll have another treat (and I'll enjoy another break): Richard Posner--distinguished jurist, founding father of the economic analysis of law, most-cited living legal scholar, scourge of Dworkin and formalist jurisprudents (not to mention admirer of Nietzsche!)--has kindly agreed to blog here, to share some of his views about matters jurisprudential--from Holmes to pragmatism to (one of my favorite Marxian themes in the Posnerian corpus!) the irrelevance of normative ethics--and perhaps other topics as well.

"Committee may meet on Starrett next week; NAACP opposes selection of white judge to U.S. District Court seat in Hattiesburg": The Clarion-Ledger of Jackson, Mississippi contains this article today. The Senate Judiciary Committee is scheduled to hold its next confirmation hearing for judicial nominees on Wednesday.

"Feds try again for wiretapping conviction": Declan McCullagh of c|net News.Com reports here today that "The U.S. Department of Justice has asked a full appeals court to review a controversial ruling saying an e-mail provider did not violate federal wiretapping laws by allegedly reading messages meant for customers." The article also notes that several civil liberties groups have filed an amicus brief in support of the federal government's request. In this blog post at "The Volokh Conspiracy," Law Professor Orin Kerr explains why that amicus brief is quite persuasive -- he is one of its authors. You can access the ruling of a divided three-judge panel of the U.S. Court of Appeals for the First Circuit in the case at this link.

This intellectual property case pits the sport of extreme kayaking against the iconic American timepiece, Timex. In an effort to update its image, Timex Corporation ("Timex") arranged with Polar Bear Productions ("Polar Bear") to produce film footage featuring some of the stars of whitewater kayaking, paddling through exotic locales in North and South America and using equipment bearing the Timex logo. The promotion was so popular with Timex that it just kept on ticking and continued using the footage well beyond any permission to do so. The result is a lawsuit that has taken on a life far beyond a simple copyright and trademark case. Now, after two trials, two jury verdicts awarding in excess of $2 million to Polar Bear, and a long history between the parties, the case presents us with several novel issues of copyright law. The consequence of this appeal is a series of rulings resulting in yet another round in the trial court.

"Libel suit against Observer rejected; Piece on Denton County officials was protected satire, Texas court rules": The web site of The Dallas Morning News provides this news update from The Denton Record-Chronicle.

I wanted to pick a subject that, for "classified" reasons, has been on my mind a lot lately -- vote counting and en bancs... Howard Bashman, he of the wildly-successful yet oh-so-subtly-biased How Appealing, loves to poke fun at the Ninth Circuit anytime the following scenario happens, and, admittedly, it happens a lot:

Panel majority includes three active judges, all of whom vote unanimously to affirm/reverse/whatever. Case goes en banc. En banc panel, per Ninth Circuit rules, need not necessarily include any/all of the original judges. Assume it includes none of them. Now, en banc court splits 6-5 to reverse the panel decision.

Well, as Mr. Bashman loves to point out, this means that a party "loses" by a vote of 6-8. Eight active circuit judges voted one way, six vote the other, yet the six votes win. There is an air of the ridiculous here, no?

I'm not convinced. First off, let me defend my home turf for a moment and point out that, though this is a particular problem out here in la-la-land, it could happen in some form on many other circuits that allow senior judges on original panels to also sit on en bancs -- it's just more common because our en banc panels are more easily skewed.

But as a principled matter, when a case goes en banc, the original opinion is withdrawn; kaput; it never happened. I don't know how it works in other circuits, but here, the second an order is entered taking a case en banc, the original decision basically ceases to exist. So, while three active judges may have voted one way on the issue, their votes _no longer count_. Lest someone object that this is a technicality, it's a rather significant point in other contexts too, i.e., the fight over whether unpublished opinions should be precedential (I'll save that for another high horse).

We have a screwy en banc procedure out here -- I don't dispute that. Six judges, in some cases, get to dictate the "will" of the entire court, all 25 active and 22 senior judges together. But I am just very skeptical of arguments that this kind of vote "counting" is one of the more serious flaws of such a procedure... then again, I'm biased. :-) It just seems to me that we live in a system where five votes trump 50 million, so why should people get outraged when six trump five (plus three that don't count).

Hmm, it's difficult for me to argue against such impressive logic.

But seriously, if three active judges on a Ninth Circuit panel consider an issue that's governed by law which the en banc Ninth Circuit is powerless to overrule, and then another eleven active judges on an en banc Ninth Circuit panel consider the exact same question, it's not fair to discuss how all fourteen judges voted on the question because the original panel's decision has been vacated? Does that also mean I shouldn't say how a district judge has voted on a question of law if his or her ruling has been vacated by a U.S. Court of Appeals?

The absurdity of Vladeck's position is revealed by the fact that even defenders of the Ninth Circuit's mini-en banc procedure admit that sometimes the procedure produces outcomes that differ meaningfully from the outcome that would have been reached had all active judges participated in rehearing the case en banc. See Judge Stephen Reinhardt's answer to question 14 of his "20 questions for the appellate judge" interview and Judge Michael Daly Hawkins's answer to question 7 of his "20 questions" interview. Of course, in every other circuit all non-recused active judges do participate in hearing and deciding cases en banc. Only in the Ninth Circuit, with twenty-eight authorized active judges, is it impossible as a practical matter for a case to truly be heard en banc, by the court's entire complement of active judges.

"US court backs FCC radio market definition": Reuters reports here that "A U.S. appeals court on Friday granted an FCC request for a narrower definition of radio markets to take effect, which could make it harder for the industry to consolidate further." The text of the order does not yet appear online at the web site of the U.S. Court of Appeals for the Third Circuit.

Update: You can access a copy of the Third Circuit's order at this link. Thanks much to the reader who so kindly sent this along.

U.S. Court of Appeals for the Third Circuit examines contours of "probate exception" to a federal district court's diversity of citizenship subject matter jurisdiction: Circuit Judge Michael Chertoff issued this decision today on behalf of a unanimous three-judge panel. In its ruling, the Third Circuit reinstates some claims that the trial court had dismissed in reliance on the "probate exception."

"Sniper Raises Speedy Trial Rule; Muhammad Lawyers Say Rights Violated": The Washington Post today contains an article that begins, "When suspected thief Robert V. Funk escaped from the Fauquier County jail in 1988, he set off a chain of events -- and a key legal ruling -- that could lead to the dismissal of all remaining charges in Virginia against sniper John Allen Muhammad."

Supreme Court of Texas instructs lower courts to get a better sense of humor: Today the Supreme Court of Texas issued its eagerly awaited ruling in New Times, Inc. v. Isaacks, which has been described as "a case of first impression that may determine whether satire is a protected form of speech." You can access today's ruling at this link.

U.S. Court of Appeals for the Eighth Circuit delivers good news to an elementary school teacher who wanted to participate in The Good News Club's after-school activities at the school where she teaches: You can access today's ruling at this link. In its opinion, the court writes: "While we are aware that school districts *** must tread carefully in a constitutional mine field of Establishment Clause, Free Speech Clause and Free Exercise Clause concerns, we reiterate that Establishment Clause cases stress the government's neutrality towards religion."

"Jailed Assassin 'Weds' Using Loophole": Reuters reports here from Jerusalem that "Defying a life prison term in isolation, Israeli Prime Minister Yitzhak Rabin's assassin has secretly married by proxy, his bride said Friday."

"The Blogger in the Black Robe; 7th Circuit’s Posner Not Seeking a Permanent Pundit Gig After Logging in for a Week":This article appears online today from The ABA Journal eReport. The following passage appears toward the end of the article:

Programming note: I typically post online a new installment of this blog's monthly feature "20 questions for the appellate judge" on the first Monday of each month. The first Monday of this month, however, is a federal and state holiday. As a result, the September 2004 installment of the "20 questions for the appellate judge" featuring Chief Justice Shirley S. Abrahamson of the Supreme Court of Wisconsin will appear online here at midnight on Monday, September 13, 2004, the second Monday of the month.

"Jury confusion results in reversal": The Casper Star Tribune today contains an article that begins, "Because the jury was confused, the Wyoming Supreme Court on Thursday reversed the conviction of a Campbell County man for taking indecent liberties with a 14-year-old girl." Yesterday's ruling of the Supreme Court of Wyoming can be accessed at this link.

"MDs cleared to sue insurers for pay; More than a half-million physicians are told they can finally go forward in their lawsuit against the nation's major health insurers":This article appears today in The Miami Herald. And The Atlanta Journal-Constitution reports today that "Court greenlights lawsuit against HMOs."

"Monument to William O. Douglas Unveiled at Davis High":This article appears today in The Yakima Herald-Republic. No mention of Justice Douglas would be complete without also mentioning Seventh Circuit Judge Richard A. Posner's review, entitled "The Anti-Hero," of the book "Wild Bill: The Legend and Life of William O. Douglas."

"Hall of Blame: Who's to blame for the wreckage of the Kobe Bryant case?" Dahlia Lithwick -- whose guest columnist gig at The New York Times ended this past Sunday -- has this essay today online at Slate.

Another error corrected: The good folks at The Heritage Foundation have corrected the error I originally noted here yesterday. In its original form, the essay in question stated:

Terrence Boyle, Timothy Tymkovich, Jeff Sutton and Deborah Cook. Other than the fact that the American Bar Association gave all of them its highest rating - "well-qualified" - what does the U.S. Senate know about these people? All have been nominated, but none has received so much as a hearing before the Senate Judiciary Committee.

Ironically, as a reader pointed out via email today, the essay as originally written was also incorrect in stating that the ABA gave all four of these nominees its highest rating of "Well Qualified." In truth, the ABA ratings for three of these nominees were not "Well Qualified," while Circuit Judge Jeffrey S. Sutton received a rating of "substantial majority Qualified/minority Well Qualified." You can view the ABA ratings at this link.

U.S. Court of Appeals for the Ninth Circuit reverses another criminal conviction for possession of child pornography: Today a unanimous three-judge panel has ruled, in a decision you can access here, that probable cause was lacking to search for images of child pornography on the computer of an individual who used a credit card to subscribe to a web site offering pornographic images of underage girls. Circuit Judge Ronald M. Gould issued a concurring opinion in which he explained that he joined in the majority opinion only because Ninth Circuit precedent required the result and, unconstrained by that incorrect Ninth Circuit precedent, he would vote to uphold the search.

Update: Plus, judges borrowed from outside the Ninth Circuit's jurisdiction are more likely to call the California Court of Appeal the California Court of Appeals (an error that even I've committed once or twice here at "How Appealing" in the past), as has happened in the first paragraph of the panel's order.

"Defending Detainees: One day Neal Katyal is on a brief with Richard Epstein, the next he's challenging the Guantanamo tribunals."This article appears in the September 2004 issue of The American Lawyer.

But earlier this week, he did get to write the majority opinion in a case where the question presented was whether a defendant arrested in possession of more than a pound of marijuana could advance a "compassionate use" defense under California's Proposition 215 law, which allows the smoking of marijuana for medicinal purposes. The trial court had ruled that the defendant possessed too much marijuana, but the defendant responded that he needed a larger amount because his method of use was to eat the drug.

"Court to set rules for parental disputes between gays": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "The California Supreme Court agreed Wednesday to set ground rules for parental disputes between same-sex couples, granting hearings in three cases in which former lesbian partners claim parental status for children they had helped to raise." In other coverage, Claire Cooper, legal affairs writer for The Sacramento Bee, reports that "Parental-rights cases center on gay ex-partners."

"Former Dean Sues Chapman Over Dismissal; University official hired in 1998 to improve the law school says she was let go because of mental health problems brought on by job stress": The Los Angeles Times today contains an article that begins, "An associate dean at Chapman University claims in a lawsuit that the stress of trying to improve the university's law school took such a toll on her mental health that she tried to kill herself."

Now you see it, now you don't: This morning, The Associated Press issued a report headlined "La. Court Turns Away Amendment Challenge" that begins, "The Louisiana Supreme Court refused to take up legal challenges aimed at keeping a proposed constitutional ban on gay marriages and civil unions off the Sept. 18 ballot." Within the hour, however, The AP posted an item headlined "AP Eliminates Gay-Marriage-La. Story" that begins, "The AP has eliminated the Gay Marriage-Louisiana story. The court clerk's office now says it erred and decision has not yet been made."

Sixth Circuit holds that investment tax credit granted to DaimlerChrysler Corp. to induce the company to expand its business operations in Toledo, Ohio violates Commerce Clause: You can access today's ruling by a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit at this link.

"Supreme Court overturns decision in deputy photo suit": The Waterloo-Cedar Falls Courier offers this article reporting on a ruling that the Supreme Court of Iowa issued yesterday in a case in which a former female deputy sheriff alleges that a photograph of her was altered to make it appear that she was standing in front of a squad car with her breasts exposed.

"Monument vote not likely in '04; Ruling probably won't come in time to get initiative on November ballot": The Idaho Statesman today contains an article that begins, "If voters have a say at all on whether to return a Ten Commandments monument to Boise city property, it probably won't be in November."

Not only did The Green Bag's original description of the Justice Sandra Day O'Connor bobblehead doll contain an error, but so does the bobblehead doll itself: The spine of Volume 530 of United States Reports, which she is holding, states in gold lettering on black background "OTC TERM 1999." By contrast, both the bobblehead dolls for Chief Justice William H. Rehnquist and John Paul Stevens contain, on the volumes of U.S. Reports that they are each holding, the correct abbreviation for October -- OCT. This error will be a bit more difficult to correct than was the earlier one.

Filibustering of judges is bad; not having one's facts correct is worse: The Heritage Foundation yesterday posted online two essays -- one by Edwin J. Feulner and the other by Rebecca Hagelin -- criticizing the filibustering of some of President Bush's judicial nominees. The essay by Hagelin (click on her name to read it) seems to contain a rather obvious error, in that it criticizes the Senate Judiciary Committee for having failed to hold hearings for nominees who, in three of the four instances mentioned, not only have received hearings but have also been confirmed and are now serving as federal appellate judges with life tenure.

U.S. Court of Appeals for the Eleventh Circuit affirms nationwide class certification of RICO claims asserted by allegedly underpaid doctors against health maintenance organizations: You can access the court's opinion in this closely-followed case at this link. The opinion's opening and closing paragraphs are as follows:

This is a case of almost all doctors versus almost all major health maintenance organizations (HMOs), coming before us for the third time in as many years; there have been twenty-one published orders and opinions in this case from various federal courts. The plaintiffs are a putative class of all doctors who submitted at least one claim to any of the defendant HMOs between 1990 and 2002. They allege that the defendants conspired with each other to program their computer systems to systematically underpay physicians for their services. We affirm the district court's certification of the plaintiffs' federal claims, though we strongly urge the district court to revisit the definition of these classes, and reverse the district court's certification of the plaintiffs' state claims. We do not reach the district court's certification of a California Subclass since the defendants did not specifically challenge the certification on appeal.

****

Given the number of parties involved in this case, it threatens to degenerate into a Hobbesian war of all against all. Nevertheless, we feel that the district court--a veritable Leviathan--will be able to prevent the parties from regressing to a state of nature. One can only hope that, on remand, the proceedings will be short, though preferably not nasty and brutish.

U.S. District Judge Thomas Penfield Jackson retires from the federal judiciary, will now speak with the press whenever he damn well pleases: Today's edition of The Washington Post contains this newsbrief (first item).

The federal government files its U.S. Supreme Court opening brief on the merits in the cases presenting the question whether Blakely v. Washington invalidates the U.S. Sentencing Guidelines: Law Professor Douglas A. Berman has posted online a copy of the federal government's brief together with several amicus briefs and has linked to them in this post at his "Sentencing Law and Policy" blog.

"Newdow widens pledge challenge": In today's edition of The Sacramento Bee, legal affairs writer Claire Cooper has an article that begins, "Sacramento atheist Michael Newdow said Tuesday that he expects to fight his next legal war against 'under God' in the Pledge of Allegiance on multiple fronts, with separate cases running simultaneously in several regions of the nation."

The United Church of Christ wants to protest against the Cleveland Indians baseball team because the church considers the team's use of the nickname "Indians" and the cartoon-character mascot "Chief Wahoo" to be racist and offensive to Native Americans: Today in the U.S. Court of Appeals for the Sixth Circuit, the church won a partial victory in its effort to conduct such a protest near Jacobs Field. You can access today's ruling at this link.

This morning, at an auction on eBay, a Chief Justice William H. Rehnquist bobblehead doll sold for $374.90, eclipsing the $320 price that another copy of the same bobblehead doll sold for on eBay in July 2003. As my wife observed last night when glancing at my collection of the three U.S. Supreme Court bobblehead dolls that The Green Bag has issued to date (see here and here for photos of the other two), "Those bobblehead dolls are probably worth more than a thousand dollars."

The Green Bag, on average, has been issuing one Supreme Court Justice bobblehead per year. A one year subscription currently costs $35.00 and can be obtained via this link. The bobblehead dolls are selling for hundreds of dollars on the secondary market. If you do the math, like me you'll sign up for a subscription without delay.

I've been a paying subscriber for some two years now, after my repeated attempts at obtaining a complimentary Green Bag subscription were met with stony silence from the publication's staff, consisting of many notorious tightwads. True, one member of the publication's staff did graciously promise to give me a Bobble Chief from his personal stash the next time I visit his office (located in a city hundreds of miles away from me), but that offer will become so much more meaningful once the doll enters my possession. The Bobble Chief that I currently possess, broken thumb and all, came from a reader (a law professor, no less) as a gift for which I remain most thankful.

Of course, subscribing to The Green Bag isn't entirely a bed of roses. The last two U.S. Supreme Court bobblehead dolls have arrived via FedEx with the Justices' heads detached, which can be quite a distressing discovery. Fortunately, before ascertaining whether my reactions provided me with a valid claim for emotional distress, I was able to accomplish the reheading of each doll.

And thus I return full circle to this post's title -- Who among us can afford not to subscribe to The Green Bag?

With just twenty minutes to go, auction price for Chief Justice Rehnquist bobblehead doll rises to $316.02: You can access the eBay listing here. In July 2003, the Rehnquist bobblehead sold on eBay for $320. And during the short time it took me to type this post, I see the price has increased to $330.67! Update: As of 7:45 a.m. eastern time, the bid price is $350.